The Issue The issues presented in this case concern claims made by the Petitioner related to the delivery of agricultural products, namely watermelons, to the Respondent, Young, which petitioner claims have not been paid for. The claim has been advanced pursuant to Section 604.21, Florida Statutes. The disputed amount is $9,226.30. FINDINGS OF FACT 1/ Petitioner, who does business as Crawford Melon Sales, made an oral agreement with Respondent, Danny Lewis Young, who trades as Hugh Young Produce, to sell U.S. No. 1 watermelons for the price of .03 cents or .025 cents f.o.b. The total charge for the watermelons delivered and associated costs was $23,559.20, of which $14,332.90 has been paid, leaving a balance of $9,226.30. The watermelons were delivered in Florida to drivers who signed invoices of receipt at the time of shipment. The drivers were individuals dispatched by the Respondent Young or employed by the Petitioner. The exact dates of delivery are set forth in the Petitioner's Composite Exhibit No. 1. All shipments were sent to Tennessee. The trucks were very tightly packed at the request of Respondent Young. Time in transport varied depending on whether the drivers were union affiliated. The union drivers would not drive for the same length of time before stopping, as contrasted with the non-union drivers. Jessie Johnson, who was a driver in the delivery of two of the loads, found 75 to 100 bad melons in his initial load delivered to Nashville, Tennessee. In the second load, Johnson observed 65 to 70 melons that were damaged to include some broken melons. Some of that group of 65 to 70 melons had been damaged at a time when they were unloaded in Clarksville, Tennessee. The 65 to 70 damaged melons which Johnson testified about in the second load were returned to Nashville, Tennessee to be Inspected. Each of the loads which were transported by Jessie Johnson and his brother Leroy Johnson contained 1,500 to 1,800 melons in the truck bed. Randall Harper, who had been employed by the Respondent Young, established that in those loads of 50,000 to 60,000 pounds, which are in dispute, there would he a certain amount of watermelons that were bruised because of their placement on the bottom of the stack in the truck bed. The Johnson brothers and Harper were not present at times when the federal agricultural inspector in Nashville, Tennessee, examined the subject loads of watermelons. Michael W. Golightly, an employee with the United States Department of Agriculture, was the individual who inspected some watermelons at issue. He had considerable experience in inspecting watermelons prior to his examination of the loads delivered pursuant to the oral agreement between Petitioner and Respondent Young. In addition to work experience, Golightly had attended schools designed to promote his expertise in the examination of commodities, such as watermelons, to determine their marketability. Through his experience and training, Golightly is an expert in identifying the grade quality of watermelons and any associated problem reducing the quality of the commodity, watermelons. His background and training is identified in his deposition which was offered as Respondent's Exhibit No. 1 and admitted into evidence. The grading of watermelons is pursuant to standards developed by the United States Department of Agriculture and is found in Exhibit 2 to the deposition. In inspecting a load of watermelons, a representative sample is examined of approximately 100 watermelons, going from the top of the load to the bottom. The Petitioner's watermelons, which were inspected by Golightly, were all inspected in Tennessee, as contrasted with the point of origin in Florida. As a consequence, the standards to be applied in that inspection were not as rigid. The loads in question were examined by Golightly after a request had been made by Young to conduct the inspection. That request was made at the time of receipt of the watermelons and any delay in inspection was occasioned by other duties to be fulfilled by Golightly or the fact of an intervening weekend between the time of receipt and the time of inspection. In view of these delays, as much as two to five days would pass between the time that the watermelons were loaded and the inspection was made. The results of the inspections may be found as part of the Respondents' Exhibit No. 1 as exhibits to the deposition and as part of the Petitioner's Composite Exhibit No. 1. In examining the watermelons, anthracnose, anthracnose rot, stem end rot, sunburn, immature picks and bruising were found. With the exception of the 45,280 pound load of July 2, 1982, and the 76,060 pound load of July 11, 1982, by the deposition and attachments, which are Petitioner's Exhibit No. 1, and the Respondents' Exhibit No. 1, which contains copies of inspections made by Golightly, it has been shown that the watermelons in dispute were subject to a rejection as U.S. No. 1 watermelons. The basis of the rejection pertains to the observation made by the inspector in which he found those categories of deficiencies related in this paragraph. Those deficiencies are completely described in the deposition and in the inspection reports. Pursuant to custom or practice in the watermelon business, Respondent Young was entitled to sell the substandard watermelons, found by the federal inspector, at the best price possible and to pay the Petitioner a reduced amount for the product. In fact, Respondent Young mitigated the circumstances by selling those questioned watermelons that could be sold and has paid the Petitioner money realized from those sales. In addition, he has paid the Petitioner the full amount on the 45,250 pounds of watermelons of July 2, 1982. He has only paid the Respondent .015 cents f.o.b. on the 76,060 pounds of watermelons of July 11, 1982. The agreed upon price was .03 cents f.o.b. for those watermelons of July 11, 1982, and there was no proof in the course of the hearing to the effect that those watermelons were substandard. Based upon the facts as presented, Respondent still owes the Petitioner an additional $1,140.90 for the 76,060 pounds of watermelons which were delivered on July 11, 1982. The petitioner also claims $350 as a payment advanced to a driver involved with the July 3, 1982, load of 51,270 pounds. Petitioner claims Young is responsible for the reimbursement of the $350 which Petitioner advanced to this driver. The document within Respondents' Composite Exhibit No. 1, which is a copy of the invoice or statement for the load shows the payment of that advance. None of the Respondents' proof by testimony or documentation indicates any reimbursement of the $350 and the $350 claim is found to be established. Another related claim pertains to the July 13, 1982, load of 46,440 pounds in which the allegation is made by the Petitioner that $428.80 in freight costs are due from the Respondent Young. This is a balance remaining from the $928.80 freight reflected in the invoice or statement of account of July 13, 1982, which is found in Composite Exhibit No. 1 by the Petitioner. The complaint allegation shows that $500 of the total $928.80 has been paid leaving the subject $428.80 at issue. The Petitioner has successfully established entitlement to $428.80 related to freight on that load and this proof has been unrefuted by the Respondent. Finally, Petitioner claims an additional sum of $859.20 for freight on the July 18, 1983, 42,960 pound load. The statement of account or invoice, which is part of Composite Exhibit No. 1 by the Petitioner, shows a freight claim in that amount, and is sufficient proof to demonstrate entitlement to that amount. The proof offered by the Respondent Young fails to refute this claim. When added to remaining money owed for watermelon sales per se, Respondent owes the Petitioner a total amount of $2,778.90 for watermelons and related cost of freight and incidentals. American Insurance Company is surety on a $20,000.00 bond for the benefit of the Respondent Danny Lewis Young d/b/a Hugh Young Produce. This arrangement represents the available funds to pay Petitioner's claims.
The Issue This case arises from a complaint filed by Jay Nelson and Ernest Leclercq, d/b/a Sun Coast Farms, in which it is asserted that H. M. Shield, Inc., is indebted to the Complainants in the amount of $7,266.20 for agricultural products sold to the Respondent. At the hearing the representative for the Complainant stated that most of the matters asserted in the complaint had been resolved by settlement, but that six items remained in dispute and that the total amount remaining in dispute was $1,041.20. Ms. Ernst testified as a witness for the Complainant and also offered several documents as exhibits, which documents were marked as a composite exhibit and received in evidence.
Findings Of Fact Based on the testimony of the witness and on the exhibits offered and received in evidence, I make the following findings of fact: On February 23, 1984, the Complainant sold agricultural products consisting of Snap Beans, Wax Beans, and Zukes (Lot No. 1116) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $327.00 on this sale. On March 8, 1984, the Complainant sold agricultural products consisting of Snap Beans and Wax Beans (Lot No. 1294) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $184.20 on this sale. On March 8, 1984, the Complainant sold agricultural products consisting of Wax Beans (Lot No. 1295) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $184.20 on this sale. On March 19, 1984, the Complainant sold agricultural products consisting of Snap Beans and Zukes (Lot No. 1453) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $202.50 on this sale. On March 19, 1984, the Complainant sold agricultural products consisting of Snap Beans and Zukes (Lot No. 1454) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $110.00 on this sale. On March 19, 1984, the Complainant sold agricultural products consisting of Snap Beans and Zukes (Lot No. 1457) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $202.50. The total amount owed for agricultural products by the Respondent to the Complainant, which amount was unpaid as of the time of the hearing, is $1,401.20.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be entered directing H. M. Shield, Inc., to pay Jay Nelson and Ernest Leclercq, d/b/a Sun Coast Farms, the amount of $1,401.20 for the agricultural products described in the findings of fact, above. In the event the Respondent fails to make such payment within 15 days of the Final Order, it is recommended that the surety be required to pay pursuant to the bond. DONE and ORDERED this 6th day of June, 1985, at Tallahassee, Florida. Hearings Hearings MICHAEL M. PARRISH 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 6th day of June, 1985. COPIES FURNISHED: Jay Nelson & Ernest Leclercq d/b/a Sun Coast Farms P.O. Box 3064 Florida City, Florida 33034 H. M. Shield, Inc. Room 82 State Farmer's Market Pompano Beach, Florida 33060 Hartford Insurance Company of the Southeast 200 East Robinson Street Orlando, Florida 32801 Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
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
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes, (1983). At all times pertinent to this proceeding, Respondent Rentz was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 4103 by the Department, and bonded by Respondent Nationwide in the sum of $14,000 - Bond No. LP 505 761 0004. At all times pertinent to this proceeding, Respondent Nationwide was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). Petitioner harvested, loaded and shipped sixteen (16) loads of watermelons to various receivers on instruction from Respondent Rentz during the 1985 watermelon season but only four (4) loads were in dispute on the date of the hearing with a claim of $3,807.98. 1/ Petitioner in previous watermelon seasons loaded and shipped watermelons for Respondent Rentz and on all occasions, including the 1985 season, had been paid for the watermelons either in cash by Respondent Rentz or by check drawn on Respondent Rentz's account. The invoicing of all loads of watermelons shipped by Petitioner for Respondent Rentz was done by Respondent Rentz and payments made by the various receivers were made to Respondent Rentz. Petitioner's understanding that Respondent Rentz was acting as a buyer and not a broker was credible and supported by Respondent Rentz's actions subsequent to the watermelons being loaded and shipped. 2/ Although Respondent Rentz contended that he was acting as a broker, the more credible evidence shows that Respondent Rentz was acting as a buyer and that risk of loss passed to him upon shipment, with all remedies and rights for Petitioner's breach reserved to him. For purposes of Sections 604.15-604.30, Florida Statutes, the Department's policy is to consider a person a broker, requiring only a minimum bond ($13,000.00) for licensure, when that person does not take title to the product and whose function is to bring buyer and seller together and assist them in negotiating the terms of the contract for sale but not to invoice or collect from the buyer.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Rentz be ordered to pay to the Petitioner the sum of $3,807.98. It is further RECOMMENDED that if Respondent Rentz fails to timely pay the Petitioner as ordered, then Respondent Nationwide be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 15th day of April, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1986.
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
The Issue The issue in the proceeding is what amount, if any, is owed by M. G. Ford Produce to Spessard Putnal for two and a half loads of watermelons. A determination of this issue requires a determination of the character of the transaction regarding the watermelons: Was it a "sale", or was it an agreement to "handle" the melons as a broker?
Findings Of Fact Spessard Putnal grows watermelons in Lafayette County and operates out of Mayo, Florida. M. G. Ford owns M. G. Ford Produce Company, a licensed and bonded brokerage business and the successor to his father's business, Malvin Ford Produce. Both S. J. Ridgdill and Rodney Ridgdill own a fraction of the business. The principal office is in LaBelle, Florida; however, other offices are located temporarily elsewhere, including Mayo, during the various growing seasons. The watermelons which are the subject of this dispute are described as follows: Load number 218 This was 44,340 pounds of Charleston Grey watermelons: 28,260 pounds of melons grown by Cory Buchanan from Mayo, and 16,080 pounds of melons grown by Spessard Putnal. The truck left Lafayette County on June 22, 1986, and arrived at A & P Stores in Edison, New Jersey, on June 24, 1986. The load was inspected by an A & P inspector and was rejected for excessive rind rot. The load was then consigned to Eckert Produce, Inc. in Philadelphia on June 25, 1986. Eckert sold the melons for $.75 and $1.00 each, and after deducting its unloading, handling and selling charges ($534.88), paid M. G. Ford Produce $1,057.62. M. G. Ford's accounting to Spessard Putnal and Cory Buchanan which, after deducting freight expense of $1,640.58 and $75.00 handling charge, indicated a net loss of $657.96. The loss was apportioned between the two growers according to their share of the load. Load number 227 This was a full load of Spessard Putnal's Charleston Grey melons; 46,070 pounds. It left by truck on June 30, 1986, and was inspected by a U.S. Department of Agriculture inspector in New York on July 3, 1986. Six per cent damage by "transit rubs" was found, and 7 percent decay. The load arrived at Wakefern Foods in Linden, New Jersey, on July 3, 1986, where it was rejected. The load was then consigned to Eckert Produce Company in Philadelphia on July 7, 1986. A few melons sold for $1.25 each; most sold for $1.00 each. After deducting its various charges ($587.74), Eckert paid M. G. Ford Produce $1,098.51 for the load. M. G. Ford's accounting to Spessard Putnal showed deductions of $1,773.69 for freight and $75.00 for handling, for a net loss of $750.18. Load number 228 This was 43,890 pounds of Spessard Putnal's Charleston Grey melons. The truck left on July 2, 1986, and the load was inspected in New Jersey for a prospective distributor, Anthony Gangemi, Inc. The U.S. Department of Agriculture inspection form dated July 5, 1986, is stamped "Rejected" with notations of internal rind spots, bruising, bacterial soft rot, and "overripe". The load was consigned to Eckert Produce on July 7, 1986. The melons that were not discarded were sold for $1.00 each. After deducting its charges ($545.55), Eckert paid M. G. Ford Produce $1,143.45 for the load. In turn, M. G. Ford deducted freight of $1,645.87 and handling charges of $75.00, and its accounting to Spessard Putnal showed a net loss of $577.42. 1/ The end of the watermelon season in Lafayette County in 1986 was around the Fourth of July. Because of heavy rains and because of the end of the season, M. G. Ford Produce had considerable trouble with rind rot on Charleston Greys by the time they got to the northern markets. John Hull works for M. G. Ford Produce. He inspects the melons in the field and supervises the loading by contract crews. He thought Spessard Putnal's watermelons looked good and would "ride" (go north and pass inspection and be accepted). He told Putnal that he (Putnal) should be able to get at least $.03 per pound. When the two men called M. G. Ford, who was in North Carolina, he told them that the only way he would take the loads was on a consignment basis and that he would pay $.03 a pound or better if they passed inspections. The melons were loaded and their fate is described in Paragraph 3, above. Spessard Putnal claims that the agreement was that M.D. Ford bought his melons for $.03 a pound. He says that he never sells his melons on consignment but is paid "when they cross the scale". He said that the reason he wasn't paid immediately in this case was that M. G. Ford was in North Carolina. He admits that on other occasions he was paid by M. G. Ford according to the prices the melons brought "up the road". Sonya Ridgdill is M. G. Ford's mother and Malvin's widow. She served as bookkeeper, office manager and secretary for Malvin Ford Produce for 15 years and now works with her son's company. She was in the Mayo office when the arrangements were made regarding Mr. Putnal's melons and she could have paid him immediately if that had been the agreement. M. G. Ford Produce both "buys" produce and "handles" (consignment) produce for growers. When the produce is bought, the grower is paid immediately. The company has "handled" melons for both Spessard Putnal and Cory Buchanan. Cory Buchanan did not contest the accounting on his share of load number 218. A negative inspection will not necessarily result in a load being "kicked" (rejected). The market supply and demand also governs whether the load will be sold. As is common in such transactions, the arrangement between Spessard Putnal and M. G. Ford Produce is not reflected in writing. Nor is there evidence of written or verbal consent from Spessard Putnal to the consignment by M. G. Ford to Eckert Produce.
Recommendation Based upon the foregoing, it is recommended that a Final Order be entered finding that no funds are owed by Respondents to Petitioner for the watermelons in question and dismissing Petitioner's complaint. DONE AND RECOMMENDED this 25th day of February, 1987, at Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1987.
Findings Of Fact Upon consideration of the oral testimony and the documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, Petitioner, Carl Hiers and Rachel Hiers were "producers" 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 the 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, 1988 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 filed by Petitioners was timely in accordance with Section 604.21(1), Florida Statutes. Prior to Petitioners selling or delivering any watermelons (melons) to Nichols, Petitioners and Nichols agreed verbally that: (a) Petitioners would sell Nichols melons on a per pound basis at a price to be quoted by Nichols on the day of shipment; (b) Petitioners 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 Petitioners; (d) Nichols or its agent in the field would have the authority to reject melons at the place of shipment (loading) which did not neet the guality 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 Petitioners in obtaining the crew to harvest and load the melons, Petitioners had authority over the crew and was responsible for paying the crew. On a daily basis, L. L. Hiers, would contact Nichols and obtain the price being paid for melons that day. The price was marked in a 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. The price to be paid Petitioners was the price Nichols received for the melons at their destination minus 1 cent per pound commission for Nichols, taking into consideration freight, if any. Nichols was not acting as Petitioners' agent in the sale of the melons for the account of the Petitioners on a net return basis nor was Nichols acting as a negotiating broker between the Petitioners and the buyer. Nichols did not make the type of accountiig to Petitioners as required by section 604.22, Florida Statutes, had Nichols been Petitioners' agent. The prices quoted by Nichols to L. L. Hiers 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 11, 1988, L. L. Hiers 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 the load of melons shipped on June 11, 1988. Only a partial load, no. 10896 weighing 11,420 pounds for which Nichols paid 5 cents per pound, is in dispute. The amount in dispute is $114.70. On June 13, 1988, L. L. Hiers contacted Nichols and was informed that the price to be paid for melons shipped that day was 5 cents per pound. This price was recorded in the field book with the net weight of 3 loads of melons shipped that day that are in dispute. The 3 loads in dispute are as follows: (a) Load No. 10906, weighing 48,620 pounds for which Nichols paid 4 cents per pound; (b) Load No. 10904, weighing 50,660 pounds for which Nichols paid 4 cents per pound, and; (c) Load No. 10902, weighing 45,030 pounds for which Nichols paid 4 cents per pound. The amount in dispute is as follows: (a) Load No. 10906, $486.20; (b) Load No. 10904, $253.30; and (c) Load No. 10902, $450.30. On June 20, 1988, L. L. Hiers contacted Nichols and was informed that the price to be paid for melons shipped that day was 5 cents per pound. This price was recorded in the field book with the weight of 52,250 for which Nichols paid 2 cents per pound. The amount in dispute is $1,567.50. On June 23, 1988, L. L. Hiers contacted Nichols and was informed that the price to be paid for melons shipped that day was 5.25 cents per pound. This price is 0.25 cent per pound less than that quoted on the same day in Case No. 88-5632A which is apparently due to the variety, Crimson Sweet, as opposed to Charmston Grey, since the average size of the melons shipped that day was within 4 ounces. This price was recorded in the field book with the load of melons shipped that day weighing 44,140 pounds for which Nichols paid 5 cents per pound. The load in dispute is load no. 11251, and the amount in dispute is $110.35. The total amount in dispute is $2,982.35. Load no. 11090 was federally inspected and failed to meet U.S. No. 1 grade on account of condition, not quality requirements. Therefore, the price of 2 cents per pound is a reasonable price and within the terms of the verbal contract. On all other loads, Nichols contends that the quality was low resulting in a lesser price than that agreed upon. However, Nichols failed to present sufficient evidence to support this contention. Nichols has refused to pay Petitioners the difference between the agreed upon price for load nos. 10896, 10902, 10904, 10906, 11090, and 11251, and the price paid by Nichols as indicated in the settlement sheet. The total difference is $2,982.35. However, subtracting $1,567.50, the difference in load no. 11090 that was rejected, from the total differnce results in a net difference of $1,414,85 and the amount owed to Petitioners.
Recommendation Upon cnsideration of the foregoing Findings of Fact and 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 the Petitioners, Carl Hiers and Rachel Hiers, the sum of $1,414.85. It is further RECOMMENDED that if Respondent, Jay Nichols, Inc., fails to timely pay Petitioners, Carl Hiers and Rachel 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 Petitioners in accordance with Section 604.21, Florida Statutes. RESPECTFULLY SUBMITTED AND ENTERED this 20th day of March, 1989, in Tallahassee, Leon County, 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: Honorable Doyle Conner, Commissioner Mr. Carl Heirs Depaftment of Agriculture and Mrs. Rachel Hiers Consumer Service Route 5, Box 339 The Capitol Dunnellon, Florida 32630 Tallahassee, Florida 32301 Mallory Horne, Esquire Jay Nichols, Inc. Department of Agriculture and Post Office Box 1705 Consumer Services Lakeland, Florida 33802 513 Mayo Building Tallahassee, Florida 32399-0800 U.S. Fidelity & Guaranty Company Ben H. Pridgeon, Chief Post Office Box 1138 Bureau of License and Bond Baltimore, Maryland Mayo Building 21203 Tallahassee, FL 32399-0800
The Issue The issues presented here concern the attempt by Petitioner to recover $2,367.30 as payment for watermelons sold to Sunshine Fruit Company, Inc. See Sections 604.15 - 604.30, Florida Statutes.
Findings Of Fact In July, 1993, Petitioner was a producer of agricultural products in Florida. That product was watermelons. At that time Sunshine Fruit Company was a dealer in agricultural products grown in Florida. Bill Hamilton also produced watermelons in Florida in July, 1993. His field had a common boundary with Petitioner's field. The watermelons taken from Petitioner's field in July, 1993 adjacent to the Hamilton field are at issue here. Bill Hamilton had done business with Sunshine Fruit Company in 1993 but was unable to meet the July demand which Sunshine Fruit Company had for watermelons. Hamilton had conducted his business with Allen Reiter as representative for Sunshine Fruit Company. To assist Reiter in obtaining additional watermelons in July that Hamilton could not supply, Hamilton referred Reiter to the Petitioner. An agreement was made to sell Petitioner's watermelons. The agreement was one in which Phillip Allen, Petitioner's son, served as her representative in the negotiations. In this arrangement the son was entitled to fifty percent of any profits and Petitioner the remaining 50 percent. The deal Petitioner made was to provide one load of medium melons and one load of large melons to Sunshine Fruit Company. Allen Reiter sent trucks to pick up the melons from Petitioner's field. After referring the Petitioner's business to Sunshine Fruit Company, Bill Hamilton observed Allen Reiter cut watermelons that were being delivered to Sunshine Fruit Company to examine the condition of the watermelons. Those watermelons that were being examined were located on a field truck. The field truck was a truck different from the truck that was to be used in transporting the watermelons to market. Hamilton also observed Reiter examining watermelons that were being loaded onto the transport truck. Hamilton had not experienced significant problems with hollow heart or bruising in the watermelons that he had harvested in the field adjacent to that belonging to the Petitioner in the year 1993. An approach which Hamilton and Petitioner had employed to avoid crop damage to the watermelons was to avoid loading watermelons that had become wet when it rained. Both producers, that is to say Hamilton and the Petitioner, had experienced an occasional slow down in harvesting in July, 1993, because of rain. Rain delayed the harvesting and loading of the Petitioner's watermelons provided to Sunshine Fruit Company. When the rain shut down the harvesting operation, some of the watermelons had already been picked. Harvested watermelons were put on the field truck before the rain commenced and were covered up with plastic to keep the rain from damaging the watermelons. The watermelons that had been picked that morning and placed on the field truck were left on the field truck while it rained hard that afternoon. The load that is being described was finished with watermelons picked the following day. Charles Gardner who worked for Petitioner in the harvesting operation also saw Allen Reiter cut watermelons that were on the field truck on the first day, the day it rained in the afternoon. Gardner also saw Reiter examine melons on the field truck on the second day. Phillip Allen and others loaded the two trucks provided by Sunshine Fruit Company and he supervised that operation. The second load of watermelons was placed on a truck that Phillip Allen and Charles Gardner understood to be Allen Reiter's "personal truck." An individual whose name was not identified at the hearing, whom Gardner and Phillip Allen understood to be "Reiter's personal driver", based upon an introduction made by Allen Reiter, interfered with the attempts by Phillip Allen to discard watermelons of questionable quality that were being loaded onto the transport truck. Phillip Allen told the driver that the questionable watermelons were bad, and the driver said "they are all right". When Phillip Allen would attempt to discard watermelons, this unidentified individual would return the questionable watermelons into the group of watermelons being transported, accompanied by a remark to the effect, "don't worry about it." This arrangement was contrary to the more typical arrangement in which the producer would discard what it referred to as the "culls." This caused a considerable number of watermelons to be kept for transport that should have been discarded. In the past the "culls" had been broken in the field or sold as pig feed. Phillip Allen tried to contact Allen Reiter by telephone after experiencing problems in which the driver insisted that substandard watermelons be packed. Phillip Allen was unable to reach Allen Reiter. Being unsuccessful in this attempt at contact, Phillip Allen deferred to the driver's choice to leave bad watermelons in the load for transport to market. However, Phillip Allen, not the driver, was in charge of the loading of the truck upon which substandard watermelons were being placed. Therefore, to the extent that the substandard watermelons diminished the value of the load, Petitioner must suffer the consequences. Nothing in the record leads to the conclusion that the driver had the authority to act as agent for Sunshine Fruit Company in determining what watermelons were of sufficient quality to be shipped. The driver mentioned in the previous paragraph stated in the presence of Charles Gardner that he was going home for the weekend and would deliver the watermelons on Monday. This comment was made on the prior Friday. The driver stated in the presence of Phillip Allen that he was going home because of brake problems and was going to wait to deliver the melons until Monday. Larry Thompson was the buyer and field supervisor for Sunshine Fruit Company in the transaction with Petitioner. Because it had been raining for several days, the decision to purchase the watermelons was through an arrangement in which the price would be determined at the time of receipt at the ultimate destination for the produce. There was no written agreement between the parties. Larry Thompson went to the field on the day after it had rained. While at the field on the second day Thompson observed the load of large watermelons. Charles Gardner told Larry Thompson that the large watermelons were popping. Larry Thompson told Allen Reiter that Reiter needed to check the large watermelons. Larry Thompson observed watermelons that were split. The watermelons were further observed by cutting the melons to examine them. During these events Thompson told Reiter that Thompson was glad that Sunshine Fruit Company was "riding" the watermelons, meaning waiting to determine the price until delivery at the ultimate destination. Otherwise Sunshine Fruit Company would not have bought the watermelons that were in the questionable condition as Thompson observed them on the second day. Some of these substandard watermelons were observed by Phillip Allen when loading the trailer and in conversation with the unnamed driver. As expected, this load of watermelons was in poor condition at the place and time that it was delivered. This was confirmed by an inspection that was performed at the place of ultimate delivery. Phillip Allen was made aware of the problem with that load. Phillip Allen told Larry Thompson that he, Phillip Allen, was going to have to contact the Inspector and asked that Thompson provide Allen with a copy of the inspection report. Thompson mailed Allen a copy of the inspection report. Thompson told Allen that some arrangement would have to be made to gain the best financial outcome with the questionable load of watermelons that could be achieved or that the watermelons would have to be dumped. It was resolved between Thompson and Allen that an individual in Pittsburgh, Pennsylvania, would be responsible for making some disposition with the questionable load of watermelons and this was accomplished by that individual in Pittsburgh, Pennsylvania. It is unclear who would pay for freight. Concerning the freight costs, Petitioner made no claim at hearing that the freight costs should be borne by Sunshine Fruit Company, and Petitioner and Sunshine Fruit Company failed to prove the amount of freight costs that had been incurred. However, based upon testimony by Dale Swain, a dealer in agricultural products in the region, it is inferred that the custom and practice employed in selling watermelons in 1993, to include watermelons sold by Petitioner to Sunshine Fruit Company, called for the deduction of freight expenses from the price paid for the watermelons. Watermelons Swain purchased from Petitioner in July 1993 were of acceptable quality. It was established that the cost of harvesting the subject watermelons would be borne by the producer, Pauline Allen. Phillip Allen established that the price per pound for both medium and large watermelons was 3.5 . It is undisputed that the load amounting to 41,180 pounds at 3.5 per pound was worth $1,441.30. Nor is there any contention concerning the fact that Sunshine Fruit Company has paid $740 to the Petitioner for the watermelons in question. At hearing, Petitioner asserted that the second load, the load with problems, weighed at the scales in Florida before the transport in the amount 47,600 pounds. At 3.5 per pound the claimed value was $1,666.00. The at-scale value was not the agreed upon arrangement. The actual amount which was paid for the problem second load as delivered was not established at the hearing, but it can be inferred that the amount is less than $1,666.00 based upon facts that were presented at hearing.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Final Order be entered which dismisses the complaint calling for the payment of additional monies in the amount of $2,367.30. DONE and ENTERED this 18th day of March, 1994, in Tallahassee, Florida. CHARLES C. ADAMS, 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 18th day of March, 1994. APPENDIX CASE NO. 93-6173A The following discussion is given concerning the Respondent Sunshine Fruit Company's findings of fact: Unnumbered Paragraph 1 is subordinate to facts found with the exception that it is not clear in the record whether both loads are to be paid for within two weeks of passing inspection. Unnumbered Paragraphs 2 and 3 are not supported by the record. Unnumbered Paragraph 4 constitutes legal argument. COPIES FURNISHED: Phillip Allen 695 North Maylen Lacanto, FL 34461 Allen Reiter 3535 Recker Highway Winter Haven, FL 33880 Richard E. Straughn, Esquire Post Office Box 2295 Winter Haven, FL 33883-2295 Meritor Savings, F.A. Post Office Box 193 Winter Haven, FL 33882 Brenda Hyatt, Chief Department of Agriculture Bureau of Licensure and Bond 508 Mayo Building Tallahassee, FL 32399-0800 Bob Crawford, Commissioner Department of Agriculture The Capitol, Plaza Level Tallahassee, FL 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.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing; the following facts are found: At all times pertinent to this proceedings Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes, (1983). At all times pertinent to this proceeding, Respondent Rentz was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 4103 by the Departments and bonded by Respondent Nationwide in the sum of $14,000 - Bond No. LP 505 761 0004. At all times pertinent to this proceedings Respondent Nationwide was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). On June 21, 1985; Petitioner harvested from his field and loaded on a trucks procured by Respondent Rentz, 2,835 pee wee grey watermelons (watermelons) weighing a total of 43,380 pounds. On June 21, 1985, Petitioner harvested from his field and loaded on a trucks procured by Petitioner on Respondent Rentz's instructions, 1850 pee wee grey watermelons (watermelons) weighing a total of 43,460 pounds. The agreed upon price for both loads of watermelons was 2 1/2 cents per pound for a total gross sale price of $2,171.00 of which $353.55 was paid by Respondent Rentz on October 25, 1985 by check no. 290 drawn on the account of Mr. or Mrs. Ronald D. Rentz leaving a balance of $1,817.45. This amount does not include either the $20.00 for lumber added on to the June 21, 1985 invoice or the $20.00 added to the complaint for lumber. There was no evidence that the lumber was an agricultural product or that Petitioner produced the lumber charged to Respondent Rentz. Also the price of the lumber was added on and not included in price of the watermelons. The watermelons were invoiced to Seaway Produce by Petitioner on its invoice showing Ron Rentz as brokers at Respondent Rentz's request. Petitioner's understanding that Respondent Rentz was acting as buyer and not as a broker was credible and supported by Respondent Rentz's actions subsequent to the watermelons being loaded and shipped. Although Respondent Rentz contended that he was acting as a brokers the more credible evidence shows that Respondent Rentz was acting as a buyer and that risk of loss passed to him upon shipments with all remedies and rights for Petitioner's breach reserved to him. There was no official inspection of the watermelons when they were loaded and the evidence presented by Petitioner that the watermelons were of good quality and in good condition when shipped was believable and went unrebutted by Respondent Rentz. For purposes of Sections 604.15-604.30, Florida statutes; the Department's policy is to consider a person a brokers requiring only a minimum bond ($13,000.00) for licensure when that person does not take title to the product and whose function is to bring buyer and seller together and assist them in negotiating the terms of the contract for sale but not to invoice or collect from the buyer.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Rentz be ordered to pay to the Petitioner the sum of $1,817.45. It is, further RECOMMENDED that if Respondent Rentz fails to timely pay the Petitioner as ordered, then Respondent Nationwide be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes Respectfully submitted and entered this 14th day of April, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, FL 32301 Robert Chastain General Counsel Department of Agriculture and Consumer Services Mayo Buildings Room 513 Tallahassee, FL 32301 Ron Weaver, Esq. Department of Agriculture and Consumer Services Mayo Building Tallahassee, FL 32301 Mr. Joe W. Kight Chief Bureau of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, FL 32301 Mr. Ronald Rentz Route 1, Box 3510 Havana, FL Bigham Hide Company, Inc. Post Office Box 188 Coleman, FL 33521 Lawrence J. Marchbanks Esq. P. O. Box 879 Wildwood, FL 32785 Nationwide Mutual Insurance Company Attention: Robert Brand, Esq. Post Office Box 1781 Gainesville, FL 32602 Robert D. Stinson P. O. Box 1739 Tallahassee, FL 32302
