The Issue The issue in this case is whether Petitioner is entitled to additional payment for a shipment of watermelons that he delivered to Respondent in May, 1993.
Findings Of Fact Growers Marketing Services, Inc. (Respondent) is a broker of watermelons and other agricultural produce. Preferred National Insurance Company, Inc. is the surety for Respondent. Petitioner has grown watermelons for about six years. In 1993, as in past years, Petitioner sold watermelons to Respondent and other brokers. Late on the afternoon of May 5, 1993, and continuing past darkness, Petitioner loaded a trailer full of watermelons for C & C, which is another agricultural broker to which Petitioner sells watermelons. Because Petitioner lacks sufficient lighting at the place of loading, the crew could not sufficiently determine the quality of the watermelons that they were loading. Many misshapen and substandard watermelons were loaded, but the trailer was not quite full. The conformance of the shipment, which was supposed to be all large watermelons, suffered further when a C&C representative told Petitioner to complete the load with smaller melons. Petitioner did so. The C & C shipment was taken to the scales, weighed, and trucked that night to Miami, where the recipient rejected the shipment due to poor quality and small size. On the morning of May 6, Petitioner learned that C & C was returning the shipment to him and would not pay for it. A field representative of Respondent learned of the rejected shipment and offered to try to sell it for whatever he could. Petitioner agreed. When the melons returned to the area on May 6, they were immediately taken to Respondent's packing house in Plant City. The packer immediately recognized that the melons were quite distressed. Misshapen, flat, and leaking, the melons needed to be sold fast. The packer so informed representatives of Respondent, who directed the packer to place the melons in large bins, rather than boxes, so they could be more easily marketed. A representative of Respondent immediately informed Petitioner of this development, and he said that they should get whatever they could for the melons. Respondent called a customer in Jacksonville, explained the situation, and agreed to sell them on consignment to the customer. The customer successfully remarketed a large number of the melons and, on May 25, 1993, remitted to Respondent a check in the amount of $5000, representing full payment for the melons. Respondent deducted from the $5000 its normal binning charge of $1260 and its normal sales charge of $420, leaving $3320. After a small mandatory deduction for National Watermelon Promotion Board, Respondent remitted to Petitioner, by draft dated June 10, 1993, the net of $3311.60. With the above-described payment, Petitioner has been paid in full for the watermelons.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the Complaint. ENTERED on January 10, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 10, 1994. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Kye Bishop, pro se 145 N. Osceola Arcadia, FL 33821 Arthur C. Fulmer P.O. Box 2958 Lakeland, FL 33806 Preferred National Insurance P.O. Box 40-7003 Ft. Lauderdale, FL 33340-7003
The Issue Is Petitioner entitled to all or part of $12,732.61 he claims as a result of eight loads of watermelons brokered by Respondent Sunny Fresh Citrus Export & Sales Company between June 17, 1996 and June 21, 1996?
Findings Of Fact Petitioner is a grower of watermelons and qualifies as a "producer" under Section 604.15(5), Florida Statutes. Respondent Kelly Marinaro d/b/a Sunny Fresh Citrus Export & Sales Company is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1), Florida Statutes. Respondent American Bankers Insurance Company of Florida is surety for Respondent Sunny Fresh. Petitioner's father had long done business with Kelly Marinaro's father, Frank Marinaro, before each father's retirement. Upon what basis the fathers traded is not clear on the record. Petitioner approached Kelly Marinaro d/b/a Sunny Fresh on three occasions with written proposals, two of which involved some front money being put up by Kelly Marinaro to help Petitioner grow and sell watermelons. One proposal suggested a standard broker's fee to be taken off loads. In each instance, Kelly Marinaro rejected the proposals, explaining that he was not a grower or a buyer but only "brokered" melons other people grew. On or about June 15, 1996, Petitioner telephoned and requested that Kelly Marinaro d/b/a Sunny Fresh assist him in the sale of watermelons he had already grown on a 40 acre field near Wildwood, Florida. Earlier in the 1996 watermelon season, Carr Hussey had taken two loads of melons from Petitioner's field. Hussey had advanced Petitioner $3,000 for harvesting of the melons. Although Petitioner claimed that Mr. Hussey bought his melons in the field, he also conceded that the melons he sold Mr. Hussey did not net that amount when sold to the ultimate purchaser, and therefore, neither Mr. Hussey nor Petitioner made any profit on those two loads. Mr. Hussey did not require reimbursement of the $3,000 he had advanced and proposed that Petitioner and he "work it out" the following season. However, Mr. Hussey took no more loads of Petitioner's melons and "went off to Georgia." This left Petitioner in need of some immediate help in selling his remaining melons. In the June 15, 1996 phone call, Kelly Marinaro d/b/a Sunny Fresh agreed to "broker" Petitioner's remaining watermelons to ultimate buyers in the north and northeast United States whom Marinaro lined up by telephone before shipping the melons. That is, he agreed to use his best efforts to sell the watermelons on Petitioner's behalf to ultimate consumers, charging Petitioner one cent per pound or $1.00 per hundred weight sales charge. The parties' arrangement depended upon the sale of the watermelons and the price actually paid at the ultimate destination, rather than the price the watermelons ideally could be sold for on the day they left Petitioner's field. The parties' agreement by telephone was not reduced to writing, but Findings of Fact 8 and 9 are made contrary to Petitioner's assertion that "they (Sunny Fresh) inspected; they bought the melons as is" for the following reasons. Kelly Marinaro had previously rejected any different risk for his company than selling the melons at the ultimate destination. He produced a written notation he had made contemporaneously with his telephone negotiation with Petitioner. Despite Petitioner's vague testimony to the contrary, it appears that Petitioner had had arrangements with other brokers in the past whereby he knew no profit would be made if the melons did not arrive in good condition, and he should have been aware that the actual sale price received at the point of delivery was the standard of doing business. Petitioner did not dispute that the sales charge was to be deducted by Kelly Marinaro from the ultimate price obtained. This is consistent with a dealer selling on behalf of a grower at the ultimate destination. Petitioner relied on prices given in the standard "Watermelon Reports" as F.O.B. (F.O.B. usually signifies delivery at a certain price at the seller's expense to some location.) I also find that the parties agreed to the price of the melons being based upon the amount they netted at the melons' ultimate destination for the reasons set out in Findings of Fact 13 and 16-21. Frank Marinaro, the father of Kelly Marinaro, is retired and regularly resides outside the State of Florida. He is unable to drive himself due to age and infirmity. He has a hired driver named James Hensley. The senior Mr. Marinaro is not a principal or employee of Sunny Fresh, but he likes to visit his son and his old cronies in Florida's watermelon belt during the growing season, for old times' sake. He was visiting his son in June, 1996. Kelly Marinaro arranged for Frank Marinaro to be driven by Mr. Hensley to Wildwood. Kelly Marinaro then transferred $6,300 of Sunny Fresh's money to a Wildwood bank where it was withdrawn in cash by Frank Marinaro. Frank Marinaro, driven by Mr. Hensley, then delivered the cash in three incremental payments authorized by Kelly Marinaro to Petitioner to pre-pay Petitioner's harvesting costs. The senior Mr. Marinaro also helped with the incidental duties of meeting trucks at the Wildwood weighing station or local truck stops and directing them to Petitioner's farm. He was not paid by Sunny Fresh or by Petitioner for these services. Petitioner testified that Frank Marinaro was present in his field for the loading of several truckloads of melons on different days, that he cut open some melons in the field and pronounced them "good" after sampling them, and that Frank Marinaro asked Petitioner to pay Mr. Hensley $50.00 for helping around the field and with physically loading some melons while they were there. This testimony is not evidence of Frank Marinaro's "apparent agency" to engage in the more complicated and technical process of "grading" watermelons on behalf of Sunny Fresh. These activities of Frank Marinaro did not alter Petitioner's agreement with Kelly Marinaro on behalf of Sunny Fresh so that Frank Marinaro's and James Hensley's actions constituted a direct sale to Sunny Fresh of all the melons loaded at Petitioner's farm (the point of embarkation) because both Petitioner and Kelly Marinaro clearly testified that the $6,300 cash harvesting costs constituted advances against receipts of the sale of watermelons when sold by Sunny Fresh at the ultimate destination. Further, the request that Petitioner pay Mr. Hensley for helping load the watermelons is in the nature of Petitioner paying a casual laborer for harvesting rather than it is evidence that any Sunny Fresh authority resided in Mr. Hensley. Between June 17, 1996 and June 21, 1996, Petitioner loaded eight truckloads of watermelons onto trucks for sale to various customers in the north and northeast United States. Of the eight truckloads loaded, the breakdown of actual costs and expenses worked out as follows: ACCOUNTING OF R. BASS LOADS Sunny Fresh #93775 Sold to: Frankie Boy Produce Frankie Boys #96095 New York, NY Weight shipped: 41,250 Unloaded weight: 40,400 Initial price at shipment to grower for good watermelon: 5 - ½ cents/lb Net return $1,212.00 Sales charge: (404.00) Watermelon promotion board tax: (8.08) Return to R. Bass due to bad melons: 2 cents/lb $ 799.92 Sunny Fresh #93791 Sold to: Fruitco Corp. Fruitco #1880 Bronx, NY Weight shipped: 40.800 Unloaded weight: 39,180 Initial price at shipment to grower for good watermelon: 5 - ½ cents/lb Net return $ 974.71 Sales charge: (391.81) Watermelon promotion board tax: (7.84) Return to R. Bass due to bad melons: 2.49 cents/lb $ 575.06 Sunny Fresh #81312 Crosset Co. #67012 Sold to: Crosset Co. Cincinnati, OH Weight shipped: 45,860 Unloaded weight: Initial price at shipment to 41,762 grower for good watermelon: 5 cents/lb Gross return $4,134.42 Shipping charges (freight): (1,712.63) Net return: 2,421.79 Sales charge: (438.48) Watermelon promotion board tax: Return to R. Bass due to bad melons: 4.75 cents/lb (8.35) $1,974.96 Sunny Fresh #93804 Sold to: Tom Lange Co. Lange #3344 St. Louis, MO Weight shipped: 44,550 Unloaded weight: Initial price at shipment to grower for good watermelon: 39,760 5 cents/lb Gross return $2,584.40 Shipping charges (freight): (1,455.96) Net return: 1,128.44 Sales charge: (445.50) Watermelon promotion board tax: Return to R. Bass due to bad melons: 1.72 cents/lb (7.95) $ 674.99 Sunny Fresh #93802 M.A. Fruit #N/G Sold to: M.A. Fruit Trading Corp New York, NY Weight shipped: 40,130 Unloaded weight: 36,720 Initial price at shipment to grower for good watermelon: 5 cents/lb Gross return $3,797.40 Shipping charges (freight): (1,758.55) Net return: 2,038.85 Sales charge: (401.30) Watermelon promotion board tax: (7.34) Return to R. Bass due to bad melons: 4.46 cents/lb $1,630.21 Sunny Fresh #93817 Sold to: C. H. Robinson Company C.H. Robinson #379035 Cleveland, OH Weight shipped: 43,300 Unloaded weight: Initial price at shipment to 42,147 grower for good watermelon: 5 cents/lb Gross return $4,440.21 Shipping charges (freight): (1,930.27) Net return: 2,509.94 Sales charge: (411.02) Watermelon promotion board tax: Return to R. Bass due to bad melons: 5 cents/lb (8.43) $2,090.49 Sunny Fresh #93819 Sold to: Isenberg #N/G Joseph Isenberg, Inc. Buffalo, NY Weight shipped: Unloaded weight: Initial price at shipment to grower for good watermelon: 45,100 5 cents/lb Gross return $ 500.00 Shipping charges (freight): (1,877.98) Net return: (1,377.98) Sales charge: Return to R. Bass due to bad melons: 4.06 cents/lb (451.00) $(1,828.98) Sunny Fresh #81334 Sold to: Palazzola . Palazzola #N/G Memphis, TN Weight shipped: 47,700 Unloaded weight: Initial price at shipment to grower for good watermelon: 5 cents/lb Gross return $ 0.00 Shipping charges (freight): (1,553.30) Net return: (1,553.30) Inspection: (65.00) Bins: (30.00) Sales charge: Return to R. Bass due to bad melons: 4.46 cents/lb (477.00) $(2,125.90) Kelly Marinaro testified credibly that the resultant low prices paid by the ultimate purchasers was the result of the poor quality of Petitioner's melons upon their arrival at their ultimate destination. Exhibits admitted in evidence without objection verified the poor condition of five of the loads. In those instances in which there were United States Department of Agriculture Inspection Reports, I accept those reports as clearly dispositive of the issue of the melons' poor condition upon arrival. Petitioner's more vague testimony that he doubted any load could ever pass such an inspection as "A-1," does not refute them. Kelly Marinaro testified credibly and without contradiction that each time he was informed by a potential buyer that a load of melons was in poor condition upon arrival at their destination, he faxed, mailed, or telephoned Petitioner with the "trouble report" information as soon as feasible and tried to involve him in the decision as to what should be done. This is consistent with a sale at the ultimate destination. Kelly Marinaro further testified credibly and without contradiction that for two loads he recommended to Petitioner that they not obtain a federal inspection because it was not cost efficient. He made this recommendation for one of these two loads because it reached its destination on a Friday and the fruit would have to stand and deteriorate further in quality and price over the weekend if they waited on an inspection. Petitioner agreed to waive at least one inspection. Petitioner and Kelly Marinaro did not agree as to the number of times they spoke on the phone about "trouble reports", but Petitioner acknowledged at least four such phone conversations. Petitioner and Kelly Marinaro did agree that in each phone call, Petitioner told Kelly Marinaro to "do the best you can," and stated he did not want to pay any freight. This type of conversation is not indicative of a relationship in which the melons have been purchased outright at the site of embarkation, Petitioner's field. I have considered the testimony of Petitioner and of Kelly Marinaro, respectively, on the issue of whether or not Petitioner was required to pay the freight on the watermelons from their first oral contract by telephone call on June 15, 1996. Without attributing any ill-motive to either party- witness, I find they did not initially have a meeting of the minds as to how the cost of freight was to be handled, and that Petitioner assumed at some point he would not have to pay freight. However, it is clear from the evidence as a whole that Kelly Marinaro did everything possible to avoid freight charges to Petitioner and would not have meticulously informed and received oral waivers of inspections from Petitioner if there had been any clear agreement either that Sunny Fresh was purchasing the watermelons "as is" in Petitioner's field or that Sunny Fresh Produce was paying all the freight. Indeed, Petitioner was not charged for freight when Kelly Marinaro d/b/a Sunny Fresh provided the trucks. It is also clear from the evidence as a whole that Petitioner was informed on or about the date that each load arrived at its ultimate destination that he was going to be charged for at least some freight charges out of the ultimate price received for the melons. Bill Ward has acted as a broker of watermelons for many years. I accept his testimony that there can be varying grades of watermelon within one field or one harvest. The several "Watermelon Reports" admitted without objection show that the demand for Florida watermelons was light or fairly light in June 1996, that the price was down or to be established, and that all quotations were for stock of generally good quality and condition. There had been a lot of rain in Florida during the 1996 watermelon season and rain unfavorably affects the quality of melons. Melons from further north where there had been less rain were able to be shipped to northern and northeastern buyers in less time than were Florida melons. Northern and northeastern buyers did not have to select from inferior melons that year. Petitioner's testimony and supporting documentation that he sold to other purchasers two truckloads of good quality, top price melons from the same field between June 17 and June 21, 1996 does not overcome all the evidence that the majority of melons he sold through Sunny Fresh were of the poor quality reported by the ultimate buyers and federal inspectors or that the melons sold to Sunny Fresh deteriorated due to slow transport.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture enter a final order dismissing Petitioner's complaint.RECOMMENDED this 26th day of March, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1997. COPIES FURNISHED: Ronald Bass 32510 Sumter Line Road Leesburg, FL 34748 Arthur C. Fulmer, Esquire Post Office Box 2958 Lakeland, FL 33806 Mr. Robert Waldman American Bankers Insurance Company Claims Management Services 11222 Quail Roost Drive Miami, FL 33157-6596 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, FL 32399-0800
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 Petitioner, Am-Pro Distributors, Inc., d/b/a Am-Pro of Florida (hereinafter referred to as "Am-Pro"), is a producer-broker of watermelons. Keith Warren has been the chief operating officer of Am-Pro at all times pertinent to this proceeding. Respondent, Brown's Produce, Inc. (hereinafter referred to as "Brown's"), is also a watermelon producer-broker. Brown's is located in Gilchrist County, Florida. Jerry Brown has been Brown's chief operating officer at all times relevant to this proceeding. In early 1994, James Dukes informed Mr. Warren that he was interested in purchasing watermelons. Mr. Warren was concerned about selling watermelons to Mr. Dukes because of doubts about whether Mr. Dukes would pay for the watermelons. When Mr. Warren told Mr. Dukes that he would not sell watermelons to him, Mr. Dukes mentioned Mr. Brown. Subsequent to Mr. Warren's conversation with Mr. Dukes, Mr. Warren received a telephone call from Mr. Brown. Mr. Brown informed Mr. Warren that he had been doing business with Mr. Dukes. Mr. Brown also told Mr. Warren that he did not have sufficient watermelons to supply Mr. Dukes. During the telephone conversation, Mr. Brown told Mr. Warren that, if he would send watermelons to Mr. Dukes as requested, he would pay for the watermelons. Mr. Warren told Mr. Brown that he would send the watermelons to Mr. Dukes, but that he would look to Mr. Brown for payment and not Mr. Dukes. Mr. Brown agreed. The agreement between Mr. Brown and Mr. Warren was not reduced to writing, consistent with industry practices. Nor did Mr. Brown or Mr. Warren agree on the amount of watermelons that were to be sent to Mr. Dukes. Watermelons were first shipped to Mr. Dukes on or about April 20, 1994. A total of nine shipments of watermelons were made to Mr. Dukes. The following shipments of watermelons were made to Mr. Dukes during April of 1994: DATE AMOUNT CHARGED April 20: $7,272.60 April 26: 7,139.20 April 27: 7,484.40 April 28: 5,909.50 April 28: 6,468.65 April 29: 6,551.20 On or about April 30, 1994, Mr. Warren decided not to send any further shipments of watermelons to Mr. Dukes because no payment had been made for the April shipments. Mr. Warren telephoned Mr. Brown about the lack of payment. Mr. Brown indicated that he would send some money and that he would get Mr. Dukes to send money directly to Mr. Warren that Mr. Dukes owed him. Mr. Brown asked Mr. Warren to continue sending watermelons to Mr. Dukes. Shortly after speaking to Mr. Brown about the nonpayment for watermelons sent to Mr. Dukes, Mr. Warren received three checks from Mr. Dukes. The checks were dated May 2, 1994. The total amount paid by Mr. Dukes was $10,000.00. These payments were credited against the indebtedness for watermelons shipped to Mr. Dukes. Mr. Warren informed Mr. Brown that he had received partial payment. Mr. Brown asked Mr. Warren to send more watermelons because he still did not have sufficient melons to supply Mr. Dukes. In reliance on Mr. Brown's statements, made additional shipments of watermelons to Mr. Dukes during May of 1994. The following shipments of watermelons were made to Mr. Dukes: DATE AMOUNT CHARGED May 2: 5,913.30 May 3: 4,620.60 May 3: 3,780.00 A total of $55,139.45 was invoiced for watermelons shipped to Mr. Dukes. The evidence failed to prove whether invoices for the individual shipments of watermelons to Mr. Dukes were provided to Mr. Brown. Invoices accepted into evidence are addressed to Brown's and J.B. Farms, Inc. Those invoices, however, were generated by an office of Am-Pro located in Plant City, Florida. The evidence failed to prove that the invoices were actually transmitted to Browns. The first written confirmation of the shipments was sent on or about May 21, 1994. Mr. Brown was, however, verbally informed of the shipments by Mr. Warren. Mr. Brown subsequently paid $20,000.00 to Am-Pro by check dated May 18, 1994. The payment was made by Mr. Brown through J.B. Farms, Inc. The payment was credited against the remaining indebtedness of $45,139.45, leaving a balance of $25,139.45. Mr. Warren made additional requests to Mr. Brown for payment of the remaining indebtedness after the $20,000.00 payment. Mr. Brown told Mr. Warren that additional payments would be made. During late May of 1994 or early June of 1994 Mr. Brown first informed Mr. Warren that he would not pay any further amount of the indebtedness for watermelons shipped to Mr. Dukes. On or about May 21, 1994, Johnna Thompson, an employee of Am-Pro, spoke with Mr. and Ms. Brown about the outstanding debt for watermelons shipped to Mr. Dukes. Ms. Thompson was asked to send a summary of the amounts invoiced for the watermelons. Ms. Thompson sent a summary of the watermelons shipped during April and May of 1994 by fax to Ms. Brown by Johnna Thompson. The check for $20,000.00 received by Am-Pro was sent in response to Ms. Thompson's request for payment. For some unexplained reason the check was dated May 18, 1994. The check, however, was not received until after May 21, 1994 and was paid May 27, 1994. At no time during Ms. Thompson's conversations with the Browns did either Mr. Brown or Ms. Brown indicate that only one shipment of watermelons to Mr. Dukes was to be paid for by Brown's. Nor did Mr. Brown, who had earlier told Mr. Warren that he would have Mr. Dukes send Mr. Warren money that Mr. Dukes owed Mr. Brown, tell Ms. Thompson that all or part of the $10,000.00 sent by Mr. Dukes was in payment for the one load of watermelons Mr. Brown allegedly agreed to pay for. Ms. Thompson also overheard one other conversation between Mr. Warren and Mr. Brown concerning the shipment of watermelons to Mr. Dukes. At no time during that conversation did Mr. Brown indicate that he was only paying for one shipment of watermelons.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Affairs enter a Final Order requiring that Brown's Produce, Inc., pay to Petitioner the sum of $25,139.45, within fifteen days of the Final Order and, absent such payment, requiring Lawyers Surety Corporation, after notice of nonpayment, to pay the same amount to Petitioner to the extent of the amount remaining under the bond. DONE and ENTERED this 21st day of May, 1996, in Tallahassee Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-5999A The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact Accepted in 5. Accepted in 6-7. Accepted in 8. Accepted in 8-10. 5-6 Summary of some events and testimony at the final hearing. Accepted in 12. See 20. Accepted in 13. Accepted in 12. Accepted in 13. Accepted in 13 and hereby accepted. Accepted in 14. 14-15 Summary of some events and testimony at the final hearing. Accepted in 15. Accepted in 18. 18-19 Accepted in 19. 20 Accepted in 20. 21-22 Accepted in 9 and 15 23 Accepted in 14 and 18. 24-25 Hereby accepted. Not supported by the weight of the evidence. Accepted in 21-22. Accepted in 21. Accepted in 23. 30-35 Not relevant. Summary of some events and testimony at the final hearing. 36-39 These proposed findings are a summary of events and testimony at the final hearing. The statement of Mr. Dukes was given no weight in this Recommended Order. 40-44 Summary of some events and testimony at the final hearing. Accepted in 8-9. Summary of some events and testimony at the final hearing. Cumulative. Accepted in 16. Summary of some events and testimony at the final hearing. Hereby accepted Browns' Proposed Findings of Fact Accepted in 1-2. Accepted in 3-4. Hereby accepted. Statement of the issue. Accepted in 5. Accepted in 6-7. Accepted in 8-9. 8-9 Not supported by the weight of the evidence. See 10. Hereby accepted. See 17 and 21. Accepted in 21. Accepted in 17 and 21. 15-16 Accepted in 17. 17-19 Hereby accepted. 20-21, 24-25 and 33-34 These proposed findings of fact are generally correct. The "discrepancies" in dates were not sufficient to raise doubt as to the pertinent facts in this case. The discrepancies relate to when the invoices were run. Not supported by the weight of the evidence. See 13. Hereby accepted. The last sentence is not, however, supported by the weight of the evidence. 26-27 Not supported by the weight of the evidence. 28-29 Not relevant. Not supported by the weight of the evidence. Not relevant and not supported by the weight of the evidence. Hereby accepted. 35 See 8 36-38 Not supported by the weight of the evidence. Hereby accepted. Not supported by the weight of the evidence. Not relevant. Not supported by the weight of the evidence. COPIES FURNISHED: James H. Buzbee, Esquire Post Office Drawer HHH Plant City, Florida 33564-9053 Theodore M. Burt, Esquire Post Office Box 308 Trenton, Florida 32693 Lawyers Surety Corporation 1025 South Semoran, Suite 1085 Winter Park, Florida 32792 Brenda D. Hyatt, Chief Bureau of License and Bond Department of Agriculture & Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Whether Respondent, Larry D. Henson d/b/a Cordele Melon Depot, is liable to Petitioners for $5,817.40 for watermelons grown by Petitioners and brokered by Respondent, pursuant to Chapter 604, Florida Statutes.
Findings Of Fact Petitioner Andy Mulberry owns real property in Alachua County, Florida. He and Petitioner Ermon Owens (the growers) were partners or joint venturers for the purpose of producing a profitable watermelon crop on Mr. Mulberry's property during the summer of 2003. Respondent Larry Henson is a licensed "dealer in agricultural products," as defined in Section 604.15(1), Florida Statutes. He lives out of state and his business is located in Cordele, Georgia. On June 21, 2003, Hardy Tate contacted Andy Mulberry, stating that he had noticed Petitioners' crop of watermelons was of excellent quality. Mr. Tate stated that he believed his "boss," Respondent Larry Henson, would be interested in buying the watermelons. Mr. Tate had never worked with either Petitioners or Respondent before the present "deal," and had only met Mr. Henson a few months earlier. Mr. Tate is a "watermelon bird dog." That means that he is a freelance promoter of agreements between growers and dealers. His business is connecting growers (in this case, Owens and Mulberry) and dealers, a/k/a brokers, (in this case, Henson, d/b/a Cordele Melon Depot) and facilitating their negotiations and harvest. He does not work regularly for any one grower or dealer, but on his own initiative, acts as "go- between" for many growers and dealers. Mr. Tate resides in Ft. Pierce, Florida, and does not maintain his own crew of harvesters. However, Mr. Tate will pick up laborers wherever he travels and oversee their harvesting of agricultural products. These laborers may be described as "local," "day," "itinerant," or "casual," depending upon which of several federal or state statutes may apply. On June 21, 2003, Mr. Tate cajoled Mr. Mulberry into letting him put Mulberry and Henson together so Mr. Tate and his harvesters could “make a little money." After being assured by Mr. Tate by telephone that Mr. Mulberry had a good crop of medium-sized melons, Mr. Henson dealt directly with Mr. Mulberry by telephone to set the terms of their oral contract. Mr. Henson told Mr. Mulberry that he had a buyer in Ohio who needed quality, medium-sized watermelons. It was estimated that the Petitioners' field would yield three truckloads of such melons. Messrs. Henson and Mulberry initially negotiated a price of seven cents per pound for the first truckload and six cents per pound for all subsequent truckloads, to be paid by Mr. Henson to Petitioners after sale of the melons at the ultimate point of delivery in Ohio. There were apparently no price variations considered for potential market price fluctuations or for the cost of freight (truck and driver). Despite some vacillation in Mr. Mulberry's testimony, it is found that he clearly understood that Mr. Henson expected to receive top quality, medium-sized melons at the ultimate point of delivery in Cleveland, Ohio, for the first truckload. Also, upon a preponderance of the credible evidence, it is found that Mr. Henson made clear to Mr. Mulberry that he expected the second truckload of melons also to consist of top quality medium-sized melons at the ultimate point of delivery in Cleveland, Ohio. While there is some suggestion within the testimony that if the first two truckloads sold well in Cleveland, Ohio, Mr. Henson might have accepted a third truckload of mixed large and small melons, that is irrelevant in calculating what, if anything, the parties owe each other, because that truckload was sold elsewhere, and as a result, Petitioners are not seeking money from Respondent for that truckload. (See Finding of Fact 36.) Petitioners had been ready to harvest several days earlier, but had no harvesting crew on the premises or on standby 1/ and were short of money to hire one, so it was finally agreed between Mr. Henson, Mr. Mulberry, and Mr. Tate that Mr. Henson would advance Petitioners the cost of harvesting and loading (calculated at two cents per pound) and would forward to Mr. Tate the money to pay harvesters secured by Mr. Tate, with the understanding that this amount was to be deducted from the amount due from Mr. Henson to Petitioners for the first truckload of watermelons. This arrangement meant that Petitioners could then expect to be paid only five cents per pound and only four cents per pound for the first and second truckloads, respectively. Mr. Tate hired a local crew, set the crew to picking, picked up the money advanced by Mr. Henson, and ultimately paid the crew for harvesting and loading. It is also noted that on the two nights Mr. Tate's crew worked on Petitioners’ crop, Mr. Owens and his wife bought dinner for the crew. Mr. Henson hired and sent a third-party truck and driver to Petitioners’ field on June 21, 2003. Although it is clear that all concerned were aware Mr. Henson was paying the cost of the freight by providing the truck and driver, there is no competent evidence that the parties ever reached any meeting of the minds as to how the cost of freight was ultimately to be allocated between the growers and broker. There also is no evidence in this record setting out the standard operating procedure or business custom by which such freight costs are normally allocated in the trade. The crew selected by Mr. Tate harvested the first truckload of melons on or about June 21, 2003. Before they began harvesting, Mr. Tate cut open some medium-sized melons and showed the crew and Mr. Mulberry the size and quality of melons Mr. Henson wanted. Mr. Tate personally oversaw approximately 750 of the 2000 melons that went into the first truck provided by Mr. Henson. These melons appeared to be of good quality and the correct size (medium). However, Mr. Tate was not in the field all of the time. In addition to being gone for approximately five hours on June 21, 2003, to pick up the wages of the harvesters which Mr. Henson had advanced, Mr. Tate was apparently off-premises on other days in other fields with other crews. Although Mr. Tate testified that Mr. Henson would hold him responsible for the size and quality of the melons loaded, Mr. Tate assumed that Mr. Mulberry was in charge of loading his melons while he, Mr. Tate, went to pick up the funds advanced by Mr. Henson to pay the harvesting crew. According to Mr. Tate, it is common procedure for him to rely on the grower to see that the correct kind of melons are loaded, because if the right type and quality of melons do not arrive at the ultimate destination, the grower will not be paid. Because Mr. Tate's commission from Mr. Henson also would be based on the size and quality of the melons at the ultimate point of delivery, in Mr. Tate's opinion, his and Mr. Mulberry's interests in loading good melons were the same. With regard to the first truckload of melons, Mr. Tate was gone from Petitioners' field for approximately five hours. When he returned to the field, the first truckload was fully loaded. Mr. Tate remembered the quality of the first 700 melons he had seen loaded and was satisfied with the melons on the top of the truck, but he did not check the full depth of the first truckload for size and quality. The entire first truckload amounted to approximately 2000 melons, including approximately 1250 melons Mr. Tate had not personally checked. The greater weight of the credible evidence is that the first truckload of melons left Mr. Mulberry’s field after midnight on June 22, 2003, that is, plus or minus 12:01 a.m. June 23, 2003. The greater weight of the credible evidence is that the first truckload weighed in at 42,820 pounds of melons. Given Mr. Henson’s and Mr. Mulberry’s agreement with regard to harvesting costs, this weight would mean that the growers would be paid five cents per pound upon delivery of that weight of medium-sized, good quality melons in Cleveland, Ohio. The first truckload of melons was delivered to Mr. Henson's customer in Cleveland, Ohio, on the morning of June 24, 2003. There is no competent evidence that there was any unreasonable delay in transit. Due to the poor quality and varying sizes of these melons (from small to large instead of all medium), the customer at the point of delivery refused delivery and telephoned Mr. Henson with that information. Mr. Henson told the Ohio customer to call for a federal inspection of the first truckload of Petitioners' melons. Mr. Henson then telephoned Mr. Mulberry and told him of the problem with the first truckload. The federal inspection report, dated 11:20 a.m., June 24, 2003, declared that the average defects were 34 percent and serious defects were 26 percent of the first truckload, and further noted that many of the melons were in an advanced state of decay. On this basis, the Ohio customer, the Economy Produce Company, rejected the first truckload. Ultimately, the Economy Produce Company sold the first truckload at a vastly reduced rate and transmitted the full amount received to Mr. Henson. This amount was $700.00. There is considerable dispute about whether the second truckload had been loaded and had actually left Petitioners' field before Mr. Henson faxed the federal inspection report to Mr. Mulberry. The best reconstruction of chronological events is that Mr. Tate started to oversee the loading of the second truckload in Mr. Mulberry’s field on June 23, 2003, but loading was not completed until June 24, 2003. On the morning of June 24, 2003, when Mr. Henson telephoned Mr. Tate to tell him that the first truckload had been bad (see Finding of Fact 23), Mr. Tate was not in Mr. Mulberry’s melon field. Mr. Henson then faxed the federal inspection sheet to Mr. Mulberry. When Mr. Tate later arrived at Mr. Mulberry's melon field, Mr. Tate explained the inspection sheet to Mr. Mulberry. Then, Mr. Mulberry and Mr. Tate went to inspect the second truck which was still being loaded. Mr. Tate cut open several melons from the second truck and showed them to Mr. Mulberry, citing their large size and over-ripeness as probably the same problems that had occurred with the first truckload. Reconciling the differences in the witnesses’ respective testimony as much as possible, it appears that both Mr. Mulberry and Mr. Tate knew that there were some off-size and some over-ripe melons in the second truckload, but Mr. Henson was allowed to believe, during his phone calls concerning the problems with the first truckload, that the second truckload had left the field and could not be held. Mr. Tate warned Mr. Mulberry that there would be some problems with the second load too. Mr. Tate told Mr. Mulberry not to load any more large melons and to leave the large melons under a tree packed in straw. Mr. Tate then left the melon field. When Mr. Tate returned, the second truckload had already left the field, and there were no large melons stacked under the tree. At that point, Mr. Tate realized Mr. Mulberry had allowed all sizes of melons to be loaded into the second truck. If the second truckload, containing 47,000 pounds of melons, had arrived in Cleveland, Ohio, with the right size and quality of melons, Petitioners would have been entitled to four cents per pound from Mr. Henson, on the basis of their ultimate harvesting agreement. When the truck driver radioed to Mr. Henson on June 24, 2003, that he was en route to Cleveland, Ohio, with the second truckload of melons and that the truck was passing Lake City, Florida, Mr. Henson diverted the second truckload of melons to his wholesale warehouse in Cordele, Georgia. Mr. Henson did this because he did not want to incur freight charges of approximately $1,800.00 on a second load of melons which could be as bad as the first. Mr. Henson’s calling the truck into the Georgia facility did not sit well with the third-party truck driver, because he already had arranged a return run from Cleveland, Ohio, to Florida. Upon Mr. Henson's own inspection and that of his qualified employee, Robbie Alvarez, in Cordele, Georgia, Mr. Henson determined that the second truckload contained many melons which were over-ripe; some melons which were under-ripe; some melons which were the wrong size; and some melons which were "bottle necks." Mr. Henson decided not to send the second truckload on to Ohio and sustain shipping charges in excess of what he could reasonably expect in payment for the watermelons. Mr. Henson made several telephone calls to Mr. Mulberry urging him to come to Cordele, Georgia, to inspect the second truckload and to work out some fair monetary arrangement. Mr. Mulberry promised to come to Cordele, Georgia, and so Mr. Henson let the second truckload sit, awaiting Mr. Mulberry's arrival. However, Mr. Mulberry did not go to Cordele and did not notify Mr. Henson that he had changed his mind on the advice of the Alachua County Agent. Mr. Mulberry did not ever inform Mr. Henson that he was not coming to inspect the second truckload. Messrs. Owens and Mulberry testified that Mr. Henson sent them "release from liability" papers to sign, so that Mr. Henson would not have to pay them for the two loads of watermelons. Mr. Henson testified that he sent "release papers" so that he could sell the second load of watermelons in Cordele, Georgia. Given the evidence as a whole, Mr. Henson is the more credible witness on this issue. After approximately a day and one-half, during which Mr. Mulberry failed to come to Georgia as he had promised, Mr. Henson sold the second truckload of watermelons to By-Faith Co. for $2,150.00 and let the irate third-party truck driver go about his business. Mr. Henson did this in order to minimize his loss on the second truckload of inferior watermelons. Messrs. Mulberry and Owens sold the 1,300 melons of various sizes that would have made up the third truckload to Tavaries Brown, a local trucker, who testified that "they [the melons] were in pretty good shape, no sunburn." However, the sizes and prices of these melons were not proven-up, and “sunburn” is a different problem than decay. Therefore, Mr. Brown’s testimony does not demonstrate that the preceding two truckloads consigned to Respondent were medium-sized, good quality melons. Messrs. Mulberry and Owens sold other melons from their crop at a roadside stand, without any complaints from customers. However, the sizes and prices of these melons also was never proven-up so those sales also do not demonstrate that the first two truckloads consigned to Respondent were medium- sized, good quality melons. Petitioners seek to receive $2,997.40 for the first load of melons and $2,820.00 for the second load of melons. These figures are based on Petitioners’ contention that both truckloads of melons consigned to Respondent were the right size and of good quality. Their calculations are based upon 42,820 pounds of melons in the first load, at seven cents per pound, and 47,000 pounds of melons in the second load, at six cents per pound. Neither monetary amount accounts for the price Petitioners agreed they would owe Mr. Henson for the costs he advanced to them for harvesting at two cents per pound. Those figures would be $2,142.50 and $1,880.00, respectively. Respondent calculated the following amounts as due to him as follows: Load No. 1 Net return $ 700.00 Less 2¢ per pound advance (harvesting) -856.40 Less freight to Cleveland, Ohio -1,712.80 Less NWPD Dues -8.56 Cordele Melon Depot Commission (waived) 0.00 Net due Cordele Melon Depot $1,877.76 Load No. 2 Net return from By-Faith Co. $2,150.00 Less 2¢ per pound advance (harvesting) -940.00 Less freight to Cordele, Georgia -400.00 Less NWPD Dues -9.40 Net due Petitioners $ 800.60 Net due Cordele Melon Depot $1,877.76 Less net due Petitioners -800.60 Balance due Cordele Melon Depot $1,077.16 The evidence of the amounts paid to Respondent dealer is sufficient to establish the net returns of $700.00 and $2,150.00 respectively. The charges for harvesting costs are a matter of simple arithmetic and appear correct. At the hearing, Petitioners did not challenge Respondent's charge for the NWPD dues, but neither was there any evidence of a meeting of the minds or a standard mode of conduct with regard to this amount. Since there was no clear agreement that Petitioners would reimburse Respondent for freight costs, those calculations by Respondent are not substantiated. The amounts claimed for freight costs by Respondent also may not be established merely upon Respondent's testimony without some corroborating bill of lading or other document itemized by the third-party hauler.
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 requiring Respondent and/or its surety to pay Petitioners $1,053.60. DONE AND ENTERED this 12th day of February, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2004.
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 =================================================================
The Issue Has Respondent VBJ Packing, Inc. (Respondent) paid Petitioner, Chastain- Bishop Farms (Petitioner) in full for watermelons represented by Respondent's load numbers 3002 and 3004 purchased from Petitioner during the 1995 watermelon season?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Petitioner was a "producer" of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes. Watermelons come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. At all times pertinent to this proceeding, Respondent was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. Respondent was issued license number 8887 by the Department which is supported by Bond Number 137743741 in the amount of $75,000 written by Respondent Continental Casualty Company (Continental), as surety, with an inception date of January 1, 1995, and an expiration date of December 31, 1995. The Complaint was timely filed by Petitioner in accordance with Section 604.21(1), Florida Statutes. Sometime during the week prior to Monday, May 8, 1995, Petitioner and Respondent entered into a verbal agreement which contained the following terms: (a) Petitioner would sell Respondent a semi-trailer load of medium size melons of good quality to be harvested and loaded by Petitioner onto a semi-trailer furnished by Respondent; (b) Respondent would have the right and opportunity to inspect the melons before or during loading; (c) Respondent would pay Petitioner fifteen cents ($0.15) per pound for the melons loaded onto the trailer; (d) upon delivery at Petitioner's farm, the melons became Respondent's property and Petitioner had no further obligation to Respondent concerning the melons; and (e) settlement was to be made by Respondent within a reasonable time. Subsequent to the above agreement, Petitioner sold and Respondent bought, a second semi-trailer load of melons to be delivered under the same terms and conditions as agreed in the above verbal agreement. On Friday, May 5, 1995, Respondent's agent, Robert Allen and T. J. Chastain, a partner in Chastain-Bishop Farms, had a disagreement concerning Eddie Idlette, Respondent's inspector, being on the Petitioner's farm. Because of an incident in the past involving Idlette and Petitioner, Chastain did not want Idlette on Petitioner's farm and made this known to Allen. As result of this disagreement, Idlette left the Petitioner's farm and was not present on Monday or Tuesday, May 8 & 9, 1995, to inspect the two loads of melons. Allen testified that Chastain also excluded him from Petitioner's farm at this time, and that Chastain told him that neither he nor Idlette needed to be present during the loading of the melons because Chastain "would stand behind the loads". However, the more credible evidence shows that Chastain did not prevent Allen from inspecting the melons on Monday or Tuesday, May 8 & 9, 1995, or tell Allen that he "would stand behind the loads". Furthermore, there is credible evidence to show that Allen was present at Petitioner's farm on Monday and Tuesday, May 8 & 9, 1995, and he either inspected, or had the opportunity to inspect, the two loads of melons, notwithstanding Allen's testimony or Respondent's exhibit 6 to the contrary. Petitioner did not advise Respondent, at any time pertinent to the sale of the melons, that Petitioner would give Respondent "full market protection" on the melons. Furthermore, Petitioner did not agree, at any time pertinent to the sale of the melons, for Respondent to handle the melons "on account" for Petitioner. The more credible evidence supports Petitioner's contention that the melons were purchased by Respondent with title to the melons passing to Respondent upon delivery at Petitioner's farm, subject to inspection or the opportunity to inspect before loading and delivery. On Monday, May 8, 1995, Petitioner loaded Respondent's first semi- trailer with a State of Georgia tag number CX9379, with 2,280 medium size Sangria melons of good quality weighing 46,800 pounds and identified as Respondent's load number 3002. Respondent accepted load 3002 for shipment to its customer. Using the agreed upon price of fifteen cents ($0.15) per pound times 46,800 pounds, the Respondent owed Petitioner $7,020.00 for load number 3002. On Tuesday, May 9, 1995, Petitioner loaded Respondent's second semi- trailer with a State of New Jersey tag number TAB4020, with 2,331 medium size Sangria melons of good quality weighing 46,620 pounds and identified as Respondent's load number 3004. Respondent accepted load 3004 for shipment to its customer. Using the agreed upon price of fifteen cents ($0.15) per pound times 46,620 pounds, the Respondent owed Petitioner $6,9993.00 for load number 3004. The combined total amount owed to Petitioner by Respondent for load numbers 3002 and 3004 was $14,013.00. Respondent shipped load 3002 to E. W. Kean Co, Inc. (Kean). Upon receiving load 3002, Kean allegedly found problems with the melons. Respondent allowed Kean to handled the melons on account for Respondent. Kean sold the melons for $6,804.05 or 14.5 cents per pound. After Kean's deduction for handling, Kean paid Respondent $6,112.05 or 13.02 cents per pound. In accounting to Petitioner, Respondent made further deductions for handling and freight, and offered Petitioner $3,641.24 or 7.8 cents per pound for the melons on load 3002. Respondent shipped load 3004 to Mada Fruit Sales (Mada). Upon receiving load 3004, Mada allegedly found problems with the melons. By letter dated June 8, 1995 (Respondent's exhibit 4), Mada grudgingly agreed to pay the freight plus 10 cents per pound for the melons. Mada paid Respondent $4,662.00 for load 3004, and after Respondent deducted its commission of $466.20, offered Petitioner $4,195.80 or nine cents per pound for the melons on load 3004. By check number 18922 dated May 28, 1995, Respondent paid Petitioner $7,760.08. Respondent contends that this amount was offered to Kye Bishop in full settlement for loads 3002 and 3004, and that after Bishop consulted with Chastain, Bishop on behalf of Petitioner, accepted this amount in full settlement for loads 3002 and 3004. Bishop contends that he turned down the $7,760.08 as settlement in full but took the $7,760.08 as partial payment and proceeded to file a complaint with the Department against Respondent's bond for the difference. There is nothing written on the check to indicate that by accepting and cashing the check Petitioner acknowledged that it was payment in full for load numbers 3002 and 3004. The more credible evidence shows that Bishop did not accept the check in the amount of $7,760.08 as payment in full for loads 3002 and 3004 but only as partial payment, notwithstanding the testimony of Allen to the contrary. There was an assessment charge of $62.72 which Petitioner agrees that it owes and should be deducted from any monies owed to Petitioner by Respondent. Initially, Respondent owed Petitioner $14,013.00. However, substracting the partial payment of $7,760.08 and the assessment of $62.72 from the $14,013.00 leaves a balance owed Petitioner by Respondent of $6,190.20
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order granting the Petitioner relief by ordering Respondent VBJ Packing, Inc. to pay Petitioner the sum of $6,190.20. RECOMMENDED this 23rd day of May, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4226A The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed findings of fact 1(a) through 1(i) are adopted in substance as modified in Findings of Fact 1 through 16. Respondent VBJ Packing, Inc's Proposed Findings of Fact. Proposed finding of fact 1 is covered in the Conclusion of Law. Proposed finding of fact 2 is adopted in substance as modified in Findings of Fact 1 through 16. Proposed finding of fact 3, 6, 7 and 8 10, are not supported by evidence in the record. As to proposed finding of fact 4, Petitioner and Respondent VBJ Packing, Inc. agreed that Petitioner would sell and Respondent would pay $0.15 per pound for medium size melons. Otherwise proposed finding of fact is not supported by evidence in the record. See Findings of Fact 4, 7 and 8. As to proposed finding of fact 5, Respondent sold the loads. Otherwise proposed finding of fact 5 is not supported by evidence in the record. Respondent Continental elected not to file any proposed findings of fact. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Lakeland, Florida 32399-0800 David K. Oaks, Esquire David Oaks, P.A. 252 W. Marion Avenue Punta Gorda, Florida 33950 Mark A. Sessums, Esquire Frost, O'Toole & Saunders, P.A. Post Office Box 2188 Bartow, Florida 33831-2188
The Issue The dispute here involves the alleged non-payment for watermelons that the Petitioner claims to have sold to the Respondent.
Findings Of Fact The case is being considered in accordance with the provisions of Chapter 604, Florida Statutes, which establishes the apparatus for settling disputes between Florida produce farmers and dealers who are involved with the farmers' products. Lyman Walker, a Florida farmer, contends by his complaint that five loads of watermelons grown and harvested in Florida, were sold directly to Mr. Pagano & Sons, Inc., in the person of Maurice Pagano, on the following dates, by the following types; in the following weight amounts; at the following price per pound, and for the following total price per load: June 2, 1977, small Charleston Gray Watermelons, 51,550 lbs. at .03-1/2, totaling $1,804.00 June 2, 1977, Charleston Grey Watermelons, 47,440 lbs. at .03-1/2, totaling $1,660 June 7, 1977, Charleston Grey Watermelons, 47,850 lbs. at .02, totaling $957 June 7, 1977, Charleston Gray Watermelons, 49,190 lbs. at .02, totaling $983 June 8, 1977, Charleston Grey Watermelons, approximately 46,000 lbs. at .02, totaling $920 Total for all loads $6,325. An examination of the testimony offered in the course of the hearing, supports the Petitioner's contention. The facts in this case also show that Maurice Pagan, acting in behalf of the Respondent gave money to the Petitioner for having the watermelons loaded for shipment. That amount was $2,500, and when deducted from the $6,325 total price leaves a balance owing to the Petitioner of $3,825. The Respondent has not paid the $3,825 which it agreed to pay to the Petitioner and under the facts of the agreement it is obligated to pay the Petitioner. One final matter should be dealt with and that pertains to the approximation of the weight of the June 8, 1977, load. The figure used is an approximation, because the Respondent's representative at the loading in Florida, Phil Pepper, took that load away and failed to return the weight ticket. This caused the Petitioner to have to approximate the weight and the approximation is accepted in determining the amount which the Respondent owes the Petitioner.
Recommendation It is recommended that the Respondent be required to pay the Petitioner $3,825 for watermelons it purchased from the Petitioner. DONE AND ENTERED this 21st day of February, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jon D. Caminez, Esquire 1030 East Lafayette Street Suite 101 Tallahassee, Florida 32301 Maurice Pagano 59 Brooklyn Terminal Market Brooklyn, New York 11236 L. Earl Peterson, Chief Bureau of License and Bond Division of Marketing Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32304
Findings Of Fact The Petitioners in this matter are agricultural producers. Respondent GMS is an agricultural dealer. Petitioners, through their agent, Odis Phillips, contracted to sell a portion of their watermelons to GMS through its agent, J. W. Starling. Neither side controverts that prior to June 25, 1983, the terms of their verbal contract were as follows: The watermelons were to be loaded on the shipper's truck at the field by the grower at the grower's expense; GMS would confirm a firm sale price at the time of delivery; and Settlement would be on the day following the delivery of the melons to the shipper. The price was the local market price paid producers of watermelons by the shippers, which price was generally acknowledged to be one cent per pound less than the price for which the shipper could sell the melons. The above terms were not renegotiated between Phillips and Starling. Immediately prior to June 25, 1983, the market price paid to GMS by shippers had been falling at approximately one cent per pound per day. On or about June 25, 1983, William Ward, Jr., manager of GAS, called Starling and advised him that the watermelon market was falling and they no longer had any confirmed sales. Ward advised Starling that Starling could no longer quote fixed prices to the growers from whom GMS had been purchasing watermelons. This constituted a change from the way these transactions had been handled prior to that date, when the price of the melons was fixed and GMS had a confirmed sale for the melons. After that date, GMS sought to obtain the melons for sale as `rollers." A "roller" is a load of melons shipped without a confirmed purchaser, for which a sale is attempted to be negotiated while the melons are in transit. The loads of melons in question were shipped by GMS as "rollers." Testimony regarding whether the Petitioners agreed to the sale of the watermelons in question as "rollers" or continued to demand a fixed price for their melons is conflicting. After June 25, 1983, Starling was in contact with Phillips and advised him that the market was off and the price was dropping. Starling felt he had advised Phillips that the melons would henceforth be "rollers" and the price contingent upon the sale price. Phillips did not feel that there had been any change, but felt that the price would continue to be based upon local market conditions. It is specifically found that the terms in Case Nos. 83-3013A and 83-3014A remained unchanged. The local market price on June 27, 1983, was six cents per pound. Starling was in contact with Petitioner James E. Hiers at Starling's office on the morning of June 29, 1983. Hiers was functioning as a field supervisor, keeping a record of the number of loads, their weight, the buyer, the price, and what was paid for all loads sold involved in Case No. 83-3015A. Starling testified that he advised Hiers that the price of the watermelons shipped on June 28 and 29, 1983, was not firm but would be based upon the price for which GMS could sell them. Starling testified that he told Hiers the price was contingent upon price when the melons sold. Hiers responded to Starling on June 29, 1983, that he was not selling based upon the sales price for the melons received by GMS but would sell only for a firm price at the rate other brokers were paying producers for melons in the local area. Starling did not clearly state that the melons were "rollers;" however, there was definitely no assent on the part of Hiers to ship the Petitioners' melons as "rollers." Starling testified that he did not quote Hiers a price for the watermelons. Hiers testified that it was his practice not to load melons for shipment until a firm, fixed price for them was quoted by the purchaser. Heirs' testimony was the more credible and supported by others who had purchased melons from him. Each morning during the season, Heirs ascertained the market price for watermelons. His records reflect a price of four to five cents per pound for June 29, 1983, which Hiers took to be an effective price of four cents per pound. This price of four cents per pound was consistent with the local market price for watermelons on June 28 and 29, 1983. After Hiers rejected the new terms tendered by Starling and restated that the terms of sale were firm price based upon local market price, GMS trucks were sent with Hiers to the field for loading. It costs a farmer between two and a quarter and two and a half cents per pound to load and ship watermelons. The price eventually tendered by GMS for the melons in question was three cents per pound, or one cent less than the price quoted by Starling. The following reflects by the case number, the date, weight, and tendered settlement price for each load of watermelons purchased by GMS based upon track reports; Petitioners Exhibits 1, 2 and 3; and evidence of price based upon the testimony and records of the Petitioners: Case No. 83-3013A Date Wght. Local Amount Pound Market Tendered Difference Price by GMS Claimed Total Difference Claimed 06/27/83 40,610 $.06 $.05 $.01 $406.10 06/27/83 43,540 .06 .05 .01 435.40 06/27/83 47,900 .06 .04 .02 958.00 06/27/83 41,410 .06 .05 .01 414.10 06/27/83 40,000 .06 .05 .01 400.00 06/28/83 41,130 .05 .04 .01 411.30 06/28/83 42,610 .05 .03 .02 852.20 06/28/83 40,250 .05 .03 .02 805.00 06/28/83 42,520 .04 .03 .01 425.20 $ 5,107.30 Case No. 83-3014A Date Wght. Local Amount Pound Market Tendered Difference Price by GMS Claimed Total Difference Claimed 06/27/83 47,950 $.06 $.05 $.01 $479.50 06/28/83 42,770 .05 .04 .01 427.70 $ 907.20 Case No. 83-3015A Wght. Price Local Amount Pound Market Tendered Difference by GMS Claimed Claimed Total Difference Date 06/28/83 44,220 $.05 $.03 $.02 $884.40 06/28/83 44,070 .05 .03 .02 881.40 06/29/83 46,450 .04 .03 .01 464.50 06/29/83 41,350 .04 .03 .01 413.50 06/29/83 39,880 .04 .03 .01 398.80 06/29/83 42,100 .04 .035 .005 210.50 06/29/83 40,260 .04 .04 .00 - 0 - 06/29/83 42,420 .04 .03 .01 424.20 $ 3,676.30 In addition to the money already tendered, the Respondents owe the Petitioners the following amounts: in Case No. 83-3013A, $5,107.30; in Case No. 83-3014A, $907.20; and in -Case No. 83-3015A, $3,676.30; or a total of $9,690.80.
Recommendation Having determined that the allegations of the complaint have been established, and having determined that Respondent GMS owes the Petitioners respectively the following sums, it is recommended that the Department of Agriculture and Consumer Services order Respondent GMS to pay the Petitioners the following amounts in these cases in addition to the amounts tendered: (a) in Case No. 83-3013A, $5,107.30; (b) in Case No. 83-3014A, $907.20; and (c) in Case No. 83-3015A, $3,676.30. DONE and RECOMMENDED this 17th day of April, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1984. COPIES FURNISHED: Frederick E. Landt, III, Esquire Post Office Box 2045 Ocala, Florida 32678 M. Craig Massey, Esquire 1701 South Florida Avenue Post Office Box 2787 Lakeland, Florida 33806-2787 Glenn Bissett, Chief Bureau of Licensing and Bond Department of Agriculture & Consumer Services Mayo Building, Room 418 Tallahassee, Florida 32301 Robert A. Chastain, Esquire Department of Agriculture & Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture & Consumer Services The Capitol Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearings 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 proceedings Respondent Pagano was a licensed dealer in agricultural products as defined by Section 604.15(1); Florida Statutes (1983), issued license no. 1624 by the Departments and bonded by Sentry Indemnity Company (Sentry) in the sum of $29,000.00 - Bond No. 88-04453-01. At all times pertinent to this proceeding, Respondent Sentry 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 sold several loads of watermelons to Respondent Pagano during the 1985 watermelon season but only three (3) loads are in disputed and they are: (a) 1 load of Crimson Sweet Watermelons loaded from Barron Farm No. 3 on April 19, 1985, weighing 46,180 pounds and billed on Petitioner's invoice, No. 24-2264 at $0.274 per pound for a total invoice price of $12,653.32; (b) 1 load of Crimson Sweet Watermelons loaded from Barron Farm No. 3 on April 19, 1985, weighing 44,920 pounds and billed on Petitioner's invoice, No. 24-2265 at $0.274 per pound for a total invoice price of $12,308.08; and (c) 1 load of Grey Watermelons loaded from Barron Farms No. 2 on April 20, 1985, weighing 41,620 pounds and billed on Petitioner's invoice No. 24-2298 at $0.274 per pound for a total invoice price of $11,403.88. Each truck was weighed before and after loading on the date loaded to determine the net weight of watermelons. There was no evidence presented that this net weight was incorrect. Although the price included the cost of delivery to Respondent Pagano at 62 Brooklyn Terminal Market, Brooklyn, New York, the more credible evidence shows that the agreement between Petitioner and Respondent Pagano was that title and risk of loss passed to Respondent Pagano on shipments with all remedies and rights for Petitioner's breach reserved to Respondent Pagano. When each of the three (3) loads arrived at their destinations the total pounds to be paid for, either at the agreed upon price or at a reduced price; was adjusted downward. On each of the loads there were some watermelons paid for at a reduced price because of alleged bruising which together with the reduction in total pounds and a deduction for "protect advance", caused a reduction in the total invoice price as follows: INVOICE NO. ORIGINAL PRICE ADJUSTED PRICE DIFFERENCE 24-2264 $12,653.32 $11,397.39 $1,255.93 24-2265 12,308.08 8,667.84 3,640.24 24-2298 11,403.88 10,478.50 925.38 TOTAL: 36,365.28 30,543.73 5,821.55 There was no federal or state inspection performed at the time the watermelons were loaded or after arrival at their destination. The more credible evidence shows that petitioner was not advised of the condition of the watermelons before the adjustment was made to allow petitioner an opportunity to ask for an inspection or give any other instruction with regards to the watermelons. Petitioner sold and shipped to different buyers, five (5) loads of Crimson Sweet Watermelons and two (2) loads of mixed watermelons from Barron Farms Nos. 2 and 3 on April 19, 1985 which were received without any incident of loss due to bruising or otherwise. Petitioner sold and shipped to different buyers five (5) loads of Grey watermelons from Barron Farm No. 2 and three (3) loads of Crimson Sweet Watermelons from Barron Farms Nos. 2 and 3 on April 20, 1985 which were received without any incident of loss due to bruising or otherwise. Petitioner made adjustments in the amount of freight owed on all three (3) loads due to differences in weight at point of shipment and weight at destination and for the weight of watermelons rejected. On invoice No. 24- 2265 the freight was reduced from $1,976.48 to $1,651.20 which included a reduction for 5,120 pounds of rejected watermelons at $4.40 per hundred weight plus $100.00 protect advanced on invoice No. 24-2298 the freight was reduced from $1,831.28 to $1,704.00 which includes a reduction for 620 pounds of watermelons due to difference in weight at point of shipping and weight at destinations plus $100.00 protect advanced and on invoice No. 24-2264 the freight was reduced from $2,031.92 to $1,847.88 which includes a reduction for 1910 pounds of watermelons rejected or difference in shipping and receiving weights plus $100.00 protect advance. The total difference in freight on all three loads is $636.60. On May 12 and 29, 1985, Respondent Pagano paid Petitioner the total sum of $30,543.73 leaving a balance owed on the three (3) loads of $5;82l.55 which Respondent Pagano has refused to pay.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Pagano be ordered to pay to the Petitioner the sum of $5,821.55 with the Petitioner being held responsible for any freight due as a result of this recommendation. It is further RECOMMENDED that if Respondent Pagano fails to timely pay the Petitioner as ordered, then Respondent Sentry 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 24th day of February, 1985, in Tallahassee, Leon County, Florida. Hearings Hearings 1985. WILLIAM R. CAVE Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 24th day of February, 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 F. J. Manuel, Jr., Esquire Post Office Box 3626 Orlando, Florida 32802 Robert Hanshaw and Bruce Hanshaw Post Office Box 996 LaBelle, Florida 33935 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief License and Bond Room 418, Mayo Building Tallahassee, Florida 32301 Tony Pagano & Sons, Inc. 62 Brooklyn Terminal Market Brooklyn, New York 11236
