The Issue The issues that were considered in the course of the hearing were those related to a claim by the Petitioner of entitlement to receive an additional $5,581.00 in proceeds related to the sale of watermelons to J. R. Sales, Inc. In this case Petitioner has alleged that the Respondent J. R. Sales, Inc. in the person of its representative, one Carr Hussey, had agreed to pay a fixed price of four cents per pound for large grey watermelons and 3.5 cents per pound for medium grey watermelons and that four cents per pound was due the Petitioner for the delivery of large jubilee watermelons. It is further alleged that those prices were not paid. If the Petitioner's assertions are correct, the additional amount owed would be $5,581.00. In reply Respondent J. R. Sales, Inc. denies the claim of $5,581.00 and in its defense states that all money due and owning to the Petitioner has been paid.
Findings Of Fact Petitioner, Earl Dicks, is a farmer in Columbia County, Florida. In 1984 Petitioner grew two varieties of watermelons in Columbia County for the purpose of selling those crops commercially. Those watermelon varieties were greys and jubilees. As of June 21, 1984, Petitioner had not sold his crop of watermelons. On that date Petitioner was introduced to Carr Hussey, President of J. R. Sales, Inc. This introduction was made by another farmer, one Doyle Ottinger. The purpose of this introduction was to ascertain whether Hussey would be interested in purchasing the watermelons which Petitioner had available for sale. J. R. Sales, Inc. is a company which purchases watermelons in Florida for delivery and further sale in markets outside of Florida. Following the introduction of the Petitioner and Hussey, those two gentlemen, Ottinger and Petitioner's son, Edward Dicks, went to see Petitioner's grey watermelon crop in Columbia County. Prior to arriving at the field, no discussion had been entered into between the Petitioner and Hussey as to price. While at the field Petitioner offered to sell the entire field of watermelons, and Hussey declined the purchase. At that juncture Hussey was not aware of any particular market in which he might place the Petitioner's watermelons. Hussey did indicate that if he were able to find a market for those crops, he would pay Petitioner the fair market value per pound for those watermelons on a given day. He further stated that the fair market price on June 21, 1984, was four cents a pound for large and 3.5 cents a pound for medium greys. The market price considerations at work, as Hussey envisioned them, had to do with the market conditions in New York, New England and Canada, places where the watermelons would be delivered. It also was important that the watermelons be delivered prior to July 4, 1984. The importance of this date had to do with the demand for watermelons for retail purchase prior to July 4, 1984, and a softening market immediately subsequent to that date. The discussion as to price was made in the presence of Petitioner, his son, and Hussey. There was no other discussion concerning the purchase price of the grey variety of watermelon, and no written document evidences this oral discussion of price. Following the conversation of June 21, 1984, in which price was discussed between the Petitioner and Hussey, the grey watermelons which Petitioner had in Columbia County were available for harvesting. One or two days after this conversation, the first loads of watermelons were harvested. Although Petitioner believes that 17,000 pounds of medium watermelons were harvested with the balance of the watermelons taken on that day being large watermelons, it is found that the 17,000 pounds related to large watermelons with the balance being medium watermelons. This pertains to Petitioner's Exhibit Number 1 admitted into evidence which contains the composite invoices for those loads together with poundage and price. Seventeen thousand pounds relates to the large at 3.5 per pound with the balance of the weights pertaining to mediums at three cents per pound. The net amount paid after deducting the cost of harvesting was $3,085.78. On July 2, 1984, additional medium and large grey watermelons were harvested from the Petitioner's Columbia County fields, through J. R. Sales, Inc. A copy of the composite invoices related to the latter, together with a description of the sizes, weights, and prices paid with deduction of harvesting cost, may be found in Petitioner's Exhibit Number 3 admitted into evidence. Price paid was 2.5 cents per pound for medium greys and three cents per pound for large greys. These watermelons were watermelons which would not have arrived at J. R. Sales' markets in time meet the July 4, 1984, peak sales period. The total amount paid for this July 2, 1984, harvest of greys was $5,104.75. 6..Watermelons purchased from the Petitioner had to be placed in markets other than those normally served by J. R. Sales, Inc. In the period June 23 through June 25, 1984, J. R. Sales, Inc. bought watermelons from other farmers in the growing area and paid prices for large greys which varied from three cents to 3.5 cents per pound. The price being paid for medium greys in that time frame was three cents per pound, to a farmer other than Petitioner. In the same sequence of days, 3.5 cents per pound was paid for a purchase of large jubilees from another farmer. On the subject of large jubilees, Hussey had been shown a field of jubilee watermelons that were grown by Petitioner in Columbia County. When shown the melons, he indicated that he was not interested in purchasing them. Nonetheless, J. R. Sales, Inc. harvested large jubilee watermelons from that field and paid $1,529.15 for them. Payment was made to Petitioner at a rate of three cents per pound less harvesting cost. Petitioner's son was aware of this harvesting of the large jubilees. The composite invoices related to the large jubilees may be found in Petitioner's Exhibit Number 2 admitted into evidence, a copy. This document shows the invoice numbers, the size, the price per pound and weight together with the gross price less harvesting cost and the net payment price. These watermelons were harvested on June 28, 1984. Even though there was no discussion as to price of the jubilees, Petitioner was of the opinion that four cents a pound for large jubilees should be the price, a price never agreed to by J. R. Sales, Inc. Sherod Keen, another individual who brokered and purchased watermelons in the area of Columbia County, Florida, in 1984 gave testimony. His testimony established that in the period June 21 through June 28, 1984, he was paying farmers a price between 3.5 cents to four cents per pound for medium greys and four to 4.5 cents per pound for large greys. On July 2, 1984, Keen was paying 3.5 to four cents for large greys. Keen agreed with Petitioner and Hussey that the cutoff date prior to July 4, 1984, is critical in terms of the price to be paid, in that watermelons delivered to the market prior to July 4, 1984, would bring a better price than those prices immediately following July 4, 1984. Keen sells in places such as Florida, Maine and Wisconsin. Keen was not interested in purchasing the watermelons which Petitioner sold to J. R. Sales, Inc. Hussey, Keen and Ottinger established through their testimony that the prices for watermelons varied day to day within the relevant time frame, June and July, 1984.
The Issue Whether Respondent owes Petitioner $2,377.20 as alleged in the complaint filed by Petitioner in July 1997.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Bigham Hide Company, Inc. (Petitioner), is a watermelon grower in Coleman and Lake Panasoffkee, Florida. Respondent, Florida-Georgia Produce, Inc. (Respondent), is a licensed dealer in agricultural products having been issued License Number 7666 by the Department of Agriculture and Consumer Services (Department). Respondent has posted a bond in the amount of $30,000.00 written by Cumberland Casualty & Surety Company, as surety, to assure proper accounting and payment to producers such as Petitioner. In a complaint filed with the Department in July 1997, Petitioner alleged that he entered into an agreement with Bobby Patton (Patton) on behalf of Respondent to sell one truckload of "pee wee" watermelons. Under that agreement, Respondent agreed to pay seven cents per pound for the watermelons, and it would advance Petitioner $700.00 to cover the labor costs associated with loading the truck. The remainder would be paid upon final delivery. The complaint goes on to allege that Petitioner subsequently learned that there was "some problem" with the delivered produce. After Respondent inspected Petitioner's field to verify the quality of the crop, Petitioner was told that Respondent would "fight the fight" to get the shipment accepted. Since that time, however, the complaint alleges that Petitioner did not receive payment, an accounting of the transaction, an inspection report, or any further explanation. Accordingly, Petitioner filed this complaint seeking $3,077.20, less the $700.00 advance, or a total of $2,377.20. In its answer, Respondent has alleged that it actually received a truckload of "old diseased watermelons that had been lying in the field or on [the] field truck for a week," and the receiver refused to accept the load. Since it received nothing for the shipment, Respondent contends it is owed $700.00 for the money advanced to Petitioner. The parties agree that in late May 1997, Petitioner was contacted by Bobby Patton, who was representing Respondent, regarding the sale of small size watermelons. Patton offered to buy one truckload of "pee wee" watermelons at a price of seven cents per pound, to be paid after delivery to the receiver. Patton also agreed to advance Petitioner $700.00 to cover his loading costs. Petitioner agreed to these terms, and the truck was loaded from his field on June 3, 1997. The net weight of the loaded produce was 43,960 pounds. The vehicle's tag number was recorded on the loading slip as "AH 39099" from the province of Quebec, Canada. There is no evidence that the crop was diseased when it was loaded, or that it had been picked and lying in the field for several days before being loaded, as suggested in Respondent's answer to the complaint. The shipment was destined for Ontario, Canada. On or about June 5, 1997, the product was delivered to the customer, Direct Produce, Inc., in Etobicoke, Ontario. Because of a perceived lack of quality, the buyer refused to accept the load. Respondent immediately requested a government inspection which was performed on June 6, 1997. The results of that inspection are found in Respondent's Exhibit 3. It reveals that 1 percent of the load was decayed, 3 percent were bruised, 6 percent had Anthrocnose (belly rot), and 75 percent had "yellow internal discolouration." In addition, a composite sample reflected that 20 percent had "Whitish Stracked Flesh" while 5 percent had "Hollow Heart." In other words, virtually the entire shipment was tainted with defects or disease. The report also reflected that the net weight of the shipment was 44,500 pounds, and the tag number of the vehicle was "ALP 390999." The weight and tag number were slightly different from those recorded on the loading slip at Petitioner's field. After learning of the results of the inspection, Respondent's president, James B. Oglesby, immediately contacted Petitioner's president, Greg Bigham, and requested an inspection of Bigham's field to verify the quality of watermelons. During the inspection, Oglesby did not find any signs of belly rot or other problems similar to those noted in the government inspection. If there had been any incidence of belly rot in Petitioner's field, it would have been present in other unpicked watermelons. At the end of his inspection, Oglesby told Petitioner that he would "fight the fight" to get the shipment delivered and sold. Oglesby eventually found a buyer who would accept the shipment as feed for cattle. The buyer agreed to pay the freight charges for hauling the watermelons to Canada but nothing more. Therefore, Respondent was not paid for the load. Petitioner was led to believe that he would receive payment and paperwork, including the inspection report, within a few days. When he did not receive any documentation, payment, or further explanation within a reasonable period of time, he filed this complaint. It would be highly unlikely that a farmer would have one completely bad load from a field without the same problems being present in other loads shipped from the field at the same time. Petitioner presented uncontroverted testimony that no other shipments from that field during the same time period were rejected or had similar problems. In addition, it was established that poor ventilation on the truck, or leaving the loaded truck unprotected in the sun, could be causes of the crop being spoiled or damaged before it was delivered to Canada. Finally, at hearing, Respondent suggested that Bigham may have shown him a different field than the one from which his load was picked. However, this assertion has been rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Affairs enter a final order determining that Respondent owes Petitioner $2,377.20. In the event payment is not timely made, the surety should be responsible for the indebtedness. DONE AND ENTERED this 6th day of February, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day 6th of February, 1998. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond 508 Mayo Building Tallahassee, Florida 32399-0800 Terry T. Neal, Esquire Post Office Box 490327 Leesburge, Florida 34749-0327 James B. Oglesby Post Office Box 6214 Lakeland, Florida 33807 Cumberland Casualty & Surety Company 4311 West Waters Avenue Tampa, Florida 33614 Richard D. Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
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. Joe Townsend, a Florida farmer, contends by his complaint that one load of watermelons grown and harvested in Florida, was sold directly to Great Lakes Produce of Florida, Inc. as set forth below: July 9, 1977, Charleston Grey Watermelons, 47,430 lbs. at .02, totaling $948.60 An examination of the testimony offered in the course of the hearing, supports the Petitioner's contention. The Respondent has not paid the $948.60 which it greed to pay to the Petitioner and under the facts of the agreement it is obligated to pay the Petitioner.
Recommendation It is Recommended that the Respondent be required to pay, the Petitioner 4 for the watermelons it purchased from the Petitioner. DONE AND ENTERED this 25th 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: Joe Townsend Post Office Box 1505 Live Oak, Florida Roger Serzen c/o Great Lakes Produce of Florida, Inc. Post Office Box 11931 Tampa, Florida 33680 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 Petitioner Rushton is a grower of watermelons and qualifies as a "producer" under Section 604.15(5) F.S. Respondents Smith are broker-shippers of watermelons and qualify as dealers" under Section 604.15(1) F.S. Respondent South Carolina Insurance Company is surety for Respondents Smith. The amount and period of the bond have not been established. Petitioner's complaint sets out the amounts owed as follows: DATE OF SALE QUANTITY, AND PRICE PRODUCTS PER UNIT GRADE 6/7/92 Inv.#2051 43,200 lbs. AMOUNT Crimson Sweet Melons @.04 lb. $1,728.00 NWPB - 8.64 Adv. - 700.00 $1,019.36 6/10/92 Inv.#2053 43,900 lbs. Crimson Sweet Melons @3.5 lb. $1,536.50 NWPB - 8.78 Adv. - 700.00 $ 827.72 6/10/92 Inv.#2056 46,180 lbs. Crimson Sweet Melons @3.5 lb. $1,616.30 NWPB - 9.24 Adv. - 700.00 Less Payment of - 933.18 $ 907.06 $2,754.14 TOTAL $1,820.96 Regardless of the form of the complaint, Petitioner acknowledged at formal hearing that his claim relates only to Load 2051, that he did not dispute the deductions made by Respondents for NwPB or the advances paid him by the Dealer. Petitioner's complaint lumped the three loads together only because Respondent chose to cut a single check for all three loads and pay his accounts that way nearly three months after Load 2051 was shipped. With regard to Load 2051, it is not disputed that 43,200 pounds of watermelons were loaded by Dealers in Petitioner's field on June 7, 1992. The 1992 season was Petitioner's initial endeavor at growing watermelons. He was "in a bind" from the beginning of the growing season. Petitioner had originally intended to sell his watermelons to another buyer- dealer, but that person failed to send trucks to Petitioner's field. Petitioner was approached by Bobby Patton who put him in contact with Respondent Jim Smith on Saturday, June 6, 1992. Petitioner testified that Bobby Patton cut into and inspected sample melons and accepted most of his field of melons on Friday, June 5, 1992. After speaking with Petitioner by telephone on Saturday, June 6, 1992, Jim Smith went to Petitioner's field on Sunday, June 7, 1992. Petitioner and Respondents had no prior business dealings before their June 6 phone call. Jim Smith did not arrive at Petitioner's field on June 7, 1992 until the open-topped truck he had sent was half-loaded with Petitioner's melons. At that time, Smith and his employee, Dale Hires, inspected the melons on the truck and found some hollow hearts. At that time, Mr. Smith thought that the melons on the truck had been picked since Friday, but the undersigned accepts Petitioner's testimony and finds as fact that all the melons loaded into Load 2051 had been picked only since Saturday. Petitioner admitted that the melons were, "a little overripe and should have been loaded on Thursday or Friday and moved." Petitioner admitted that he and Smith then discussed that the melons were a little overripe and that they were "close" and had to be moved. Respondent Jim Smith told Petitioner there was a "potential problem," and he would let him know if a problem actually developed. Smith also said that they would try to work together and move the melons and try not to get Respondents "hurt." However, Petitioner did not specifically agree to "help" Respondent on melon loss. Petitioner later thought he was "helping" by putting a trucker up overnight in a motel at Petitioner's own expense. Smith used the phrases, "help each other" "help us" and "not hurt" to mean, "help Respondents so that Respondents would not show a loss." Petitioner testified that he had understood on June 7 that he was "not going to ride no freight" on the load. Smith concurred that this phrase he had used was mutually understood to mean that Respondents agreed to pick up the cost of freight. Respondent Smith considered the arrangement reached on June 7 to be a brokeraged deal wherein Respondent Dealers would "ride the freight" and Petitioner would "ride the melons," that is, Respondents expected Petitioner to absorb any loss occasioned by bad melons. Petitioner, on the other hand, considered all the watermelons accepted without reservation by Hires and Smith when they stepped off the half-loaded truck on June 7, 1992 and continued to load the truck with melons of questionable ripeness. Despite Petitioner's first assertion that he considered Bobby Patton's acceptance of the melons on Friday, June 5 to have been made on behalf of Respondents, that testimony is found to be contrary to his subsequent and more credible testimony that he considered Dale Hires to be acting for Respondents on June 7 and that he personally negotiated with Jim Smith on June 6 and June 7, after Bobby Patton was out of the picture. Respondents did nothing to cloak Bobby Patton, an independent contractor who "finds" melon fields, with apparent agency to negotiate the final "deal" for them with Petitioner. The "deal" between Petitioner and Respondents, such as it was, was finally and fully negotiated on June 7 between Petitioner and Respondent Jim Smith. The "deal" applied only to a certain specified segment of Petitioner's watermelon crop. Respondent Dealers thereafter handled a total of ten loads of watermelons. Respondent Dealers paid Petitioner satisfactorily on nine of the ten loads Only Load 2051, the first load, presented any problems. No agreement as to Respondents accepting all of Petitioner's field of watermelons was ever reached between the parties. Petitioner lost money with regard to the rest of his field, but that loss is in no way attributable to Respondents, despite Petitioner's expressed frustration in that regard. Petitioner heard nothing from Respondents until he requested payment and to "settle up" concerning all ten loads, approximately June 17, 1992. At that time, Jim Smith gave Petitioner settlement documents, including weight tickets and invoices for all ten loads at one time in a large envelope. Petitioner termed these documents "confirmations." At the time Smith handed Petitioner the envelope, Smith mentioned to Petitioner that one load had a problem with it. He did not give Petitioner any further information about which load had the problem. Before putting the confirmations in the envelope, Jim Smith had written across them, " * protect shipper on quality (ripe)." Petitioner testified that if this phrase had been on the documents, he did not see it, and if he had seen the phrase, he would not have understood it. Jim Smith had originally been promised $3,564.00 on Load 2051 in a telephone conversation with the ultimate recipient/receiver. He had based his June 6 offer and "deal" on June 7 with Petitioner for an expected gross to Petitioner of $1,734.04 in anticipation of the Respondents realizing the full amount of $3,564.00 from the receiver. Smith testified that when Load 2051 reached the receiver, it was rejected by the receiver due to the melons being overripe and hollow-hearted and that a federal inspection paid for by the receiver showed 15 percent to 40 percent of the samples were hollow hearted and the overall samples in the load was 25 percent, with bruising throughout but with the highest percentage in the lower layer of the piled watermelons, and some sunburn. He produced a federal inspection sheet dated June 10, 1992 (three days after the melons left Petitioner's field), covering an estimated sixteen hundred melons to the same effect. Respondent Smith had mailed this inspection sheet to Petitioner only in August 1992, with the final settlement documents and Respondents' check covering three loads, including Load 2051. The inspection sheet indicates "Midwest Marketing 2051" and "North Coast Brokerage, Cleveland, Ohio and carrier 39TR337-AL." The settlement sheets show the same trailer license number for Load 2051. (P-2) Smith also produced a bill of lading showing that North Coast Produce received carrier 39TR337 and rejected 15 melons cut for inspection, 238 melons bruised and racked, and seven decayed melons on June 10, 1992. The bill of lading shows 260 out of 1568 melons or roughly 17 percent of the load were rejected by the receiver. (R-5) Smith also produced a Norman's Brokerage invoice for shipping that trailer, for which shipping he says he paid $1,676.16, (R-4) and an invoice showing he was paid only $1,700.00 by the receiver for this load (R-2). Neither the receiver, the federal inspector, nor any trucker testified. Smith testified that after the receiver rejected some or all of Load 2051, he thought he would get at least $1,743.04 from the receiver but the receiver's check to him was rounded to only $1,700.00. The foregoing shows that Respondent Smith ultimately accepted, without dispute, the $1,700.00 paid him by the receiver which amount was less than 50 percent of the originally promised amount and which amount did not comport with a load that was at the worst only 15 percent to 40 percent bad as per the inspection report and which the bill of lading shows contained only 260 or 17 percent rejected melons. When Jim Smith totalled out the final settlement sheets for Petitioner in August 1992, Smith intended to deduct $1,676.16 for shipping and $108.00 as a "finder's fee" he had paid to independent contractor Bobby Patton from the $1,700.00 that he had actually been paid by the receiver, thus showing a net loss to Respondents on Load 2051 of $84.16. Instead, he explained Respondents' loss to Petitioner in the final August 1992 settlement documents as "original invoice $3,564.00, (meaning the originally anticipated revenues to Respondents) less actual receipts $1,743.04, (meaning the amount Smith had expected to receive after federal inspection and rejection of part of Load 2051 by the receiver, and not what Smith actually received from the receiver) for a balance of $1,820.96." Smith labelled that figure of $1,743.04 as "customer deducts" meaning it was Respondents' net loss due to actions of the receiver. He then deducted the $1,820.96 figure from the total amount owed by Respondents to Petitioner for three loads. Mr. Smith admitted he had no authority or justification per his agreement with Petitioner for deducting the finder's fee of $108.00 he paid to Bobby Patton or his additional loss of $43.04, which occurred when the recipient promised $1743.04 and paid $1700.00. He also admitted he had no authority per Respondents' agreement with Petitioner to deduct anything attributable to freight charges.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Agriculture enter a Final Order awarding Petitioner $1,820.96 on Load 2051 only and binding Respondents to pay the full amount, but which in South Carolina Insurance Company's case shall be only to the extent of its bond. RECOMMENDED this 5th day of August, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1993. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Greg Rushton 10940 N. Circle M Avenue Dunnellon, Florida 32630 James R. Smith Randall Smith Midwest Marketing Company Post Office Box 193 Vincennes, IN 47591 South Carolina Insurance Company 1501 Lady Street Columbia, SC 29201
The Issue 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 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 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.
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 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 Swaiff was a licensed dealer in agricultural products as defined by Section 604.15(1); Florida Statutes (1983), issued license No. 1630 by the Department, and bonded by Hartford Insurance Company of the Southeast (Hartford) in the sum of $25,000.00 Bond No. RN 4528454. At all times pertinent to this proceeding, Respondent Hartford was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). The record is clear that Respondent Swain agreed to purchase a load of watermelons from Petitioner at an agreed upon price of $0.03 per pound, with payment "due on date of sale", to be loaded on a truck furnished by Respondent Swain through Elton Stone, Inc., a truck broker. Petitioner agreed to harvest and load the truck with a "good quality" or U.S. No. 1 grade watermelons subject to rejection on arrival at their destination if the watermelons were nonconforming for reasons attributable to the Petitioner. No evidence was presented with regard as to what Respondent Swain or Petitioner understood watermelons of "good quality" to mean and, likewise, no evidence was presented to show what standards a load of watermelons had to meet in order to be graded U.S. No. 1. Although Respondent Swain contends that he acted only as a sales agent, that is, he arranged the sale of the watermelons and made arrangements for a truck to deliver the watermelons; the evidence shows that the agreement between Petitioner and Respondent Swain was that title and risk of loss passed to Respondent Swain on shipment, with all remedies and rights for Petitioner's breach reserved to Respondent Swain. Petitioner sold other loads of watermelons to Respondent Swain during the 1985 watermelon season but only one (1) load is in dispute which is a load of watermelons weighing 4,8760 pounds at $0.03 per pound for a total amount of $1;462.80 which Respondent Swain has refused to pay. From June 19, 1985 through June 30, 1985, Petitioner harvested and sold nine t9) other loads of watermelons from the same field as the watermelons in dispute were harvested without any loss due to anthractnose rot or otherwise on arrival at their destination. The watermelons in dispute were loaded June 26, 1985 on a trailer with license number KY-T37-131 and billed to Charley Brothers Company; New Stanton; Pennsylvania by Respondent Swain's on his Invoice Number 061843 and delivered on June 28, 1985. Charley Brothers Company rejected the load and Respondent Swain called for an inspection which showed some anthractnose rot in the early stages in the front ten (10) feet of trailer with the remaining load showing no decay. The percentage of rot or decay is not-evident from the report since it is somewhat illegible and the inspector who prepared the report did not testify. 10 The evidence was insufficient to prove whether the trailer was vented or not vented. The testimony of those persons present during the loading of the watermelons in dispute was credible and shows that the watermelons were in good condition on June 26; 1985 when they were loaded and that if anthractnose rot was present on the watermelons it was not visible at the time of loading. Neither Respondent Swain nor his representative were present during the harvesting and loading of the watermelons. The evidence shows that Respondent Swain made numerous telephone calls in regard to this load of watermelons, some of those calls to Petitioner, but the evidence is insufficient to prove the content of those telephone conversations with Petitioner. The load was put on consignment to Felix and Sons Wholesale by Respondent Swain and he received a check in the sum of $500.00 as payment for the load of watermelons. Respondent Swain paid Elton Stone, Inc. $1,820.94 for freight resulting in a loss of $1,320.94 on the load of watermelons.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein; it is RECOMMENDED that Respondent Swain be ordered to pay to the Petitioner the sum of $t,494.30. It is further RECOMMENDED that if Respondent Swain fails to timely pay the Petitioner as ordered, then Respondent Hartford be ordered to pay the Department as required by Section 604.21; Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 28th day of February, 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 28th day of February, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, F1orida 32301 L. J. Crawford Route 3, Box 269 Lake Butler, Florida 32059 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 Hartford Insurance Company of the Southeast 200 East Robinson Street Orlando, Florida 32801 Dale M. Swain d/b/a Palm Fruit Shop 313 West Seminole Avenue Bushnell, Florida 33513
Findings Of Fact Upon consideration of the oral testimony and the documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, Petitioner, L. L. Hiers was a "producer" of agricultural products in the state of Florida as defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Respondent, Jay Nichols, Inc. (Nichols) was a licensed "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes, issued license number 1547 by the Department, and bonded by U.S. Fidelity & Guaranty Co. (Fidelity) for the sum of $50,000.00 bond number 790103-10-115-88-1, with an effective date of March 22, 2988 and a termination date of March 22, 1989. At all times pertinent to this proceeding, Nichols was authorized to do business in the state of Florida. The Complaint was timely filed by Petitioner in accordance with Section 604.21(1), Florida Statutes. Prior to Petitioner selling or delivering any watermelons (melons) to Nichols, Petitioner and Nichols agreed verbally that: (a) Petitioner would sell Nichols melons on a per pound basis at a price to be quoted by Nichols on the day of shipment, (b) Petitioner would harvest and load the melons on trucks furnished by Nichols (c) a weight ticket with the weight of the truck before and after loading would be furnished to Petitioner; (d) Nichols or its agent in the field would have the authority to reject melons at the place of shipment (loading) which did not meet the quality or grade contracted for by Nichols; (e) the melons were to be of U.S. No. 1 grade and; (f) settlement was to be made within a reasonable time after shipment. Although Nichols assisted Petitioner in obtaining the crew to harvest and load the melons, Petitioner had authority over the crew and was responsible for paying the crew. On a daily basis, Petitioner would contact Nichols and obtain the price being paid for melons that day. The price was marked in the field book with the net weight of each load. Nichols contends that the price quoted each day was the general price melons were bringing on the market that day, but the price to be paid Petitioner was the price Nichols received for the melons at their destination minus a 1 cent per pound commission for Nichols, taking into consideration freight, if any. Nichols was not acting at Petitioner's agent in the sale of the melons for the account of the petitioner on a net return basis nor was Nichols acting as a negotiating broker between the Petitioner and the buyer. Nichols did not make the type of accounting to Petitioner as required by Section 604.22, Florida Statutes, had Nichols been Petitioner's agent. The prices quoted by Nichols to Petitioner each day was the agreed upon price to be paid for melons shipped that day subject to any adjustment for failure of the melons to meet the quality or grade contracted for by Nichols. On June 10, 1988, Petitioner contacted Nichols and was informed that the price to be paid for melons shipped that day was 6 cents per pound. This price was recorded in the field book with the net weight of each truckload of melons shipped that day. Petitioner shipped 4 loads of melons on June 10, 1988 but only 3 loads are in dispute, as follows: (a) load no. 10891 weighing 45,830 lbs. for which Nichols paid 3 cents per pound; (b) load no. 10892 weighing 43,950 lbs. for which Nichols paid 5 cents per pound and; (c) load 10893 weighing 47,190 lbs. for which Nichols paid 5 cents per pound. On June 22, 1988, Petitioner contacted Nichols and was informed that the price to be paid ford melons shipped that day was 5.25 cents per pound. This price was recorded in the field book with the net weight the loads shipped that day. Only load no. 10174 weighing 44,550 lbs. for which Nichols paid 3 cents per pound is in dispute. On June 23, 1988, Petitioner contacted Nichols and was informed that the price to be paid for melons shipped that day was 5.5 cents per pound. This price was recorded in the field book with the net weight of the loads shipped that day. Two loads were shipped, but only load no. 11227 weighing 48,490 pounds for which Nichols paid 5 cents per lbs. is in dispute. The differences in the price paid for each load and the agreed upon price are as follows: (a) load no. 10891-$1324.90; (b) load no. 10892-$479.50; (c) load no. 10893-$471.90; (d) load no. 11174-$891.00 and; (c) load no. 11227- $242.45. The total amount in dispute is $3,419.75. Nichols contends that load no. 10891 was rejected because it failed to pass government inspection due to quality, and that the quality of load nos. 10982, 10893, 1174 and 1122 was poor, resulting in a lower price than the price agreed upon. There was insufficient evidence to support this contention. Nichols has refused to pay Petitioner the difference between the agreed upon price for load nos. 10891, 10892, 10893, 11174 and 11227 and the price paid by Nichols as indicated on the settlement sheet. The difference is $3,419.75, and is owed to Petitioner by Nichols.
Recommendation Upon consideration of the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that Respondent, Jay Nichols, Inc. be ordered to pay to Petitioner, L. L. Hiers the sum of $3,419.75. It is further RECOMMENDED that if Respondent, Jay Nichols, Inc. fails to timely pay Petitioner, L. L. Hiers as ordered, then Respondent, U.S. Fidelity & Guaranty Co. be ordered to pay the Department as required by section 604.21, Florida Statutes, and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes. Respectfully submitted and entered this 20th day of March, 1989, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1989. COPIES FURNISHED: Carl Hiers, Qualified Representative Route 5, Box 339 Dunnellon, Florida 32630 Steve Nichols, Vice President Jay Nichols, Inc. Qualified Representative Post Office Box 1705 Lakeland, Florida 33802 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 513 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650 U.S. Fidelity & Guaranty Co. Post Office Box 1138 Baltimore, MD 21203
