Findings Of Fact Petitioners are growers of watermelons and qualify as "producers" under Section 604.15(5) F.S. Respondents Smith are broker-shippers of watermelons and qualify as "dealers" under Section 604.15(1) F.S. Respondent South Carolina Insurance Company is surety for Respondents Smith. Petitioners Brewton and Respondents Smith have had a good business relationship overall, including the 1992 growing season during which several loads of high quality watermelons were sold by the Brewtons through the Smiths. Of the several loads of melons sold, only one load, the one invoiced on June 18, 1992, is at issue. Regardless of oral agreements with varying conditions for other loads, the parties agreed as of June 18, 1992 that the load of June 18, 1992, invoice 2088, (R-5), would be paid for by Respondents Smith advancing harvest costs and agreeing to pay Petitioners for the load, minus the costs of harvesting, after Respondents had received payment from the recipient. At the time of loading, everyone concerned felt the June 18, 1992 load might have some problems with it, but every attempt was made to load only quality product. Petitioners and Respondents each had input on which specific melons were loaded. At that time, Mr. Rick Smith o/b/o Respondents Smith advised Mr. Dewey Brewton, III that because the quality of the load was borderline and as a result of its borderline condition the whole load could be rejected at its ultimate destination, Respondents Smith wanted Petitioners Brewton to protect the Respondents Smith on the quality of the melons. He also specifically advised Dewey Brewton, III that the whole load could be rejected. The parties then entered into an agreement, partly oral and partly written. Rick Smith and Dewey Brewton, III understood their agreement to mean that Petitioners would absorb any loss as a result of the quality of the watermelons from that point forward, but that Respondents would not come back against Petitioners for the costs Respondents had advanced on Petitioners' behalf or for the cost of the freight. To signify this, the words "grower protects shipper on quality" was written on the invoice. On or about June 22, 1992, Rick Smith informed Dewey Brewton, III that the entire June 18, 1992 load had been rejected by the first receiver. At that time, Dewey Brewton, III accepted Rick Smith's representation and did not require further proof of rejection at the first point of delivery or request an independent inspection at the first point of delivery. He also acquiesced in Respondents shopping around for a second buyer who might take all or some of the load originally sent out on June 18, 1992, and did not request the return of Petitioners' watermelons. At that time, Rick Smith also told Dewey Brewton, III that the load might have to be held on the truck a day or two to ripen some of the watermelons for a second point of delivery. He again indicated that the whole load could be rejected again when the load was sent on to a second receiver. Dewey Brewton, III specifically agreed to let the melons ripen "a day or so," and did not request any change in the grower protection plan initially agreed to between the parties. Respondents Smith were eventually able to market the melons to a second delivery point (consignee) in Michigan. That receiver complained that the melons started breaking down and he had to dump 735 melons. Pursuant to standard custom of the trade, Respondents accepted payment of $1,944.00 for the melons, subtracted $1,831.98 they had laid out in freight costs and also subtracted the $675.18 they had advanced on behalf of Petitioners to the harvester. Thus, Respondents sustained a net loss of $563.16. Respondents absorbed the $563.16 loss and did not require any repayment of harvesting costs advanced or any freight charges from Petitioners. Dewey Brewton, III testified that he originally understood that "grower protection" meant that Petitioners "would stand behind their quality product until the ultimate point," but that he had interpreted a comment by Mr. Rick Smith on June 22, 1992 to the effect that "the grower (Petitioners) agreed to 'ride' the watermelons and the shipper (Respondent) agreed to 'ride' the freight" to mean that the growers (Petitioners) no longer had any duty to cover their own losses on the June 18, 1992 load of watermelons after the first rejection and up to final sale to the second buyer. In light of Mr. Brewton's failure to change the written language concerning protection on the invoice, his knowledge from the day of initial shipment that the June 18, 1992 load was of dubious quality, his acceptance that the first recipient had rejected the load, and his agreement that Respondents could have a further waiting/ripening/shopping around period before ultimate sale, coupled with his knowledge from the very beginning that the June 18, 1992 load could be utterly rejected at any point so as to render the endeavor a complete loss to the Petitioners, Mr. Brewton's assumption that on June 22, 1992, Respondents Smith were voluntarily waiving their written agreement that "grower protects shipper on quality" was not reasonable. On June 22, 1992, the load had already been rejected once. At that stage, the outcome of the proposed sale was considerably more precarious than when the crop was loaded on June 18, 1992. It is also found Mr. Brewton's assumption that the agreement had been modified was not knowingly or intentionally induced by the Respondents and that the assumption was not contemporaneously conveyed to Respondents Smith so that they could disabuse Mr. Brewton of his error. Upon the foregoing, it is further found that the written initial agreement that "grower protects shipper on quality" was not altered on June 22, 1992 but continued in force.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Department of Agriculture and Consumer Services enter a Final Order dismissing Petitioner's complaint. RECOMMENDED this 26th day of March, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1993. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda D. Hyatt, Chief Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Jacquelyn J. Brewton 8876 NW 115th Avenue Ocala, FL 34482 Dewey Brewton III 8876 NW 115th Avenue Ocala, FL 34482 Richard L. Smith Midwest Marketing Company P. O. Box 193 Vincennes, IN 47591 South Carolina Insurance Company Legal Department 1501 Lade Street Columbia, SC 29201-0000
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 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
Findings Of Fact On April 22, 1988, an indemnity bond was executed between D & S as principal and Fidelity as surety. The effective dates of the bond were from April 22, 1988 to April 21, 1989. The bond was required under Sections 604.15-604.30, Florida Statutes, in order for D & S to become licensed as a dealer in agricultural products. The purpose of the bond is to secure the faithful accounting for and payment to producers of all agricultural products handled or purchased by D & S. In September 1987, Junior Martin met with Cliff Price and Buddy Session regarding the Spring 1988 watermelon crop in LaBelle, Florida. Junior Martin was the grower. Cliff Price was the harvester, and Buddy Session planned to become a dealer before harvest. During the meeting, Junior Martin and Buddy Session entered into a verbal agreement which contained the following terms: a) Junior Martin would sell Buddy Session all of the shippable melons in his fields on a per pound basis at market price on the day of shipment; b) Junior Martin would harvest and load the melons on trucks furnished by Buddy Session; c) settlement was to be made within a reasonable time after shipment; and d) settlement would include any adjustment for failure of the melons to meet the quality or grade contracted for by Buddy Session. Such adjustments could be made by Junior Martin taking less cash or giving Buddy Session replacement melons. In the interim period between the planting and the harvesting of the crop, the farms run by Junior Martin were incorporated and became Stacys Farms, Inc. Buddy Session formed D & S Product, Inc. during the same time frame. The verbal agreement between the two individuals was accepted by both the corporations who continued to transact business under its terms. The harvesting of the crop began in May 1988. The market price began at ten cents per pound but quickly dropped to nine cents. From May 15, 1988 through May 20, 1988, the producer and the dealer in these proceedings acted under the terms of the verbal agreement without controversy. During harvest, load tickets were prepared on site by Junior Martin's harvester, Cliff Price. Each load ticket reflected the number of pounds of melons loaded, the size and variety of melon, the date, market price, the driver's name and the trailer license number. Due to a mistake in loading as to the size of melons shipped from the loading dock on May 19, 1988, D & S assigned one of its own employees to the loading dock. The employee's job was to oversee the loading process and to make sure that the correct size of melons were loaded on the proper trucks. D & S owned the melons at the time they were placed on the trucks on May 21, 1988. D & S was not acting as Stacys Farms agent in the sale of melons. On May 21, 1988, a number of loads were purchased by D & S at the market rate of nine cents per pound. The loads in dispute which were loaded on this date are: 46,060 lbs. of medium Crimson watermelons loaded onto Trailer P78 Ohio, and shipped May 21, 1988. 40,020 lbs. of medium Crimson watermelons loaded onto Trailer 92102 S/T ILL, and shipped May 21, 1988. 53,800 lbs. of large Greys loaded onto Trailer BG133M Fla, and shipped May 21, 1988. 48,000 lbs. of medium Crimsons loaded onto Trailer T03286KY, and shipped May 21, 1988. 49,120 lbs. of medium Greys loaded onto Trailer TH50695 PA, and shipped May 21, 1988. 42,840 lbs. of large Crimsons loaded onto trailer C5XZ2676310, and shipped May 21, 1988. The total amount in dispute for these loads is $23,200.60. D & S contends that the melons shipped in the loads in dispute were below the quality or size for which it contracted. As a result, D & S contends it suffered a loss of $21,987.56. A review of D & S' business records show that Trailer P78 Ohio was also referred to upon occasion as 8878 Ohio. The load number was 88135. It appears from office notes made by D & S by a person who is ill with cancer (Petitioner's Exhibit #5) that the trouble with these melons was that the customer wanted large melons, not medium ones. (The notation states, "trouble NL".) Nevertheless, the load was accepted by the customer, Tom Lange. The purchase price paid by Lange was more than the price paid by D & S. The one hundred and fifty dollars less than the amount billed by D & S was a result of the sizing difference. Stacys Farms was accurate in its billing regarding the size of melons loaded, and D & S' on site employee accepted them and allowed the medium melons to be shipped. D & S owes Stacys Farms $4,145.40 for this load. D & S' business records show that the melons loaded on Trailer 92102 S/T ILL. were referred to as load number 88129. The load was received and paid for by D & S customer E.W. Kean. D & S' business record has two numbers transposed in the weight entry on the computer printout. The bill of lading and the load ticket reflect the correct weight. Again, Petitioner's Exhibit #5 shows a notation of "trouble NL". Medium melons were shipped as reflected on the load ticket. A reasonable inference exists that D & S' customer wanted large melons as opposed to medium melons. The load was accepted by E.W. Kean, and the price billed of $3,800.00 was paid in full. D & S' on site employee accepted the load and allowed the medium melons to be shipped. Stacys Farms believed the medium melons were ordered and did not misrepresent the size purchased from them. D & S owes $1,616.80 to Stacys Farms for this load. The large Greys on Trailer BG133M Fla, were received by D & S' customer, Winn-Dixie in Jacksonville. Thirteen of the melons were cut open at the delivery site for inspection purposes prior to acceptance. The customer determined that the quality was not as good as represented at the time the shipment was ordered. The customer agreed to pay D & S $800.00 for the load. As the quality of these melons was below the quality contracted for, D & S does not have to pay the price placed on the loading ticket for these melons. In settlement under the oral agreement, D & S is entitled to an offset of $391.50, the remaining portion of the freight bill once the $800.00 paid is deducted. The medium Crimsons loaded onto Trailer T03286KY were accepted by D & S customer Maddox Brothers Produce, Inc. A government inspection of melons in warehouse bins of Taylor Produce three days later which purportedly came from the same trailer from Maddox Brothers were rejected by the second receiver. A drop in market price had also occurred in the interim. The customer paid $1,400.00 to D & S for the load. As there is no reliable evidence that the inspected melons were the same melons as those originally accepted three days before by Maddox Brothers, D & S owes Stacys Farms $4,320.00 for the melons. All of the other medium Crimsons loaded on May 21, 1988 appeared to be of acceptable quality. The uncorroborated hearsay regarding the origin of the inspected melons in Kentucky, especially after a market drop, is insufficient proof that Stacys Farms did not meet the terms of its verbal agreement with D & S regarding quality of shipped melons. D & S owes $4,320.00 for the melons. The computer records at D & S do not show the 49,120 lbs. of medium Greys loaded on Trailer TH50695PA pursuant to instructions from Tom Killmon. At the time the melons were loaded, Tom Killmon was a licensed buyer for D & S, but he also ran an independent melon business. Tom Killmon's business records reflect that he purchased the melons from D & S at nine and one-half cents per pound. The office memo referred to as Petitioner's Exhibit #5 acknowledges the load and that it received a government inspection. Tom Killmon's records reflect that he was paid for the melons but that he had not paid D & S. D & S owes $4,420.80 to Stacys Farms for the melons. Large Crimsons were loaded onto Trailer CSXZ676130 and shipped to Quebec as load number 88124. According to Petitioner's Exhibit #5, some trouble existed concerning the purchase by D & S' customer and the price of the melons was reduced by approximately $876.00. This later turned out to be $869.35. The business records show that the number of melons actually shipped to Montreal by D & S was less than the number of pounds represented on the bill of lading. At the point of destination only 38,443 lbs. of melons arrived. The quantity of melons and the freight flat rates were adjusted accordingly by the customer. For some reason, the purchase rate of $.123 per pound was reduced to $.11 per pound. There was no proof provided to establish whether the reduction in price had anything to do with the quality of the melons. Because a seal was placed upon the load at Stacys Farms prior to the shipment of the product by rail, a reasonable inference exists that the loading ticket accurately reflects the amount of melons purchased by D & S from Stacys Farms. The sum of $3,855.60 should be paid to Stacys Farms for this load.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Agriculture and Consumer Services enter a Final Order requiring D & S to make payment to Stacys Farms in the amount of $17,967.10. In the event D & S does not comply with the Department's order within fifteen days from the date it becomes final, Fidelity should be ordered to provide payment under the conditions and provisions of the agricultural products bond. The bond only provides for payment up to $10,000.00. DONE and ENTERED this 8th day of January, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Rejected. Contrary to fact. See HO #4-#5. Rejected. Improper conclusion. See HO #5. Rejected. Improper summary. Rejected. The weight to be given to testimony is within the sole discretion of the Hearing Officer. Accepted. Rejected. Irrelevant. See HO #9. Rejected. Irrelevant and immaterial to the complaint. Rejected. Irrelevant. See HO #9. Respondent D & S' proposed findings of fact are addressed as follows: Rejected as to Buddy Session's status. Otherwise accepted. See HO #3 and #5. Rejected as to the term "top quality" in first sentence. Contrary to fact. Rejected as to last two sentences. Contrary to fact. See HO #4. Accepted. Rejected. Irrelevant. Accept the first sentence. The rest is rejected. Contrary to fact. Improper conclusion. See HO #8. Rejected. Outside the terms of the complaint and the proceeding. Also, improper conclusion based upon insufficient evidence. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Rejected. Argumentative. Improper summary. Contrary to fact. See HO #4. Rejected. Contrary to fact. See HO #17. Rejected. Contrary to fact. See HO #17. Rejected. Contrary to fact. See HO #13-#18. Copies furnished: Marilyn G. Sears Stacys Farms, Inc. 1201 Riverbend Drive LaBelle, Florida 33935 Philip L. Burnett, Esquire PHILIP L. BURNETT, P.A. Post Office Box 2258 Fort Myers, Florida 33902 Fidelity & Deposit Company of Maryland Post Office Box 1227 Baltimore, Maryland 21203 Fidelity & Deposit Company of Maryland Honorable Doyle Conner Post Office Box 25857 Commissioner of Agriculture Tampa, Florida 33622 The Capitol Tallahassee, FL 32399-0810 Ben F. Pridgeon, Jr., Chief Bureau of License and Bond Mallory Horne, Esquire Department of Agriculture General Counsel and Consumer Services Department of Agriculture Lab Complex and Consumer Services Tallahassee, Florida 32399-1650 Mayo Building Tallahassee, FL 32399-0800
Findings Of Fact The Respondents, F. H. Dicks, III; F. H. Dicks, IV; and F. H. Dicks Company, are wholesale dealers in watermelons which they purchase and sell interstate. The Respondents' agents during the 1991 melon season in the Lake City area were Harold Harmon and his son, Tommy Harmon. The Harmons had purchased watermelons in the Lake City area for several year prior to 1991, and the Petitioner had sold melons through them to the Respondents for two or three seasons. The terms of purchase in these prior transactions had always been Freight on Board (FOB) the purchaser's truck at the seller's field with the farmer bearing the cost of picking. The terms of purchase of the melons sold by Petitioner to Respondents prior to the loads in question had been FOB the purchaser's truck at the seller's field with the farmer bearing the cost of picking. One of the Harmons would inspect the load being purchased during the loading and at the scale when the truck was weighed out. After the Harmons left the area, their work was carried on by Jim Coffee, who the Harmons introduced to Mr. Shiver as their representative. Once the melons were weighed and inspected, the melons belonged to the Respondents. Price would vary over the season, but price was agree upon before the melons were loaded. Settlement had always been prompt, and the Harmons enjoyed the confidence of the local farmers. On July 8, 1991, load F 276 of 45,840 pounds of watermelons was sold by Petitioner to Respondents for 4 per pound. They were weighed and inspected by Coffee. These melons were shipped to West Virginia where they were refused by the buyer. The melons were inspected in Charleston, WV, on July 12, 1991. This inspection revealed 10% transit rubs, 12% decay, and 22% checksom. These melons were subsequently shipped to Indianapolis, IN, for disposal. The Respondents deducted the freight on this load in the amount of $2,459.76 from moneys owed the Petitioner on other transactions. On July 9, 1991, two loads of watermelons, F 277 and F 278, were sold to the Respondents. Load F 277 weighed 46,200 pounds and Load F 278 weighed 45,830 pounds. Both loads were inspected by Coffee. Mr. Shiver had negotiated a price of 4 per pound for F 278 and 3.5 per pound for F 277. Load F 278 was received by the Respondents at their facility in Yamassee, SC, where it was government inspected on July 11, 1991. It was found to be in very bad shape. It was bartered to the trucking company by the Respondents in exchange for the freight charges. Load F 277 was also received by the Respondents, who accepted 38,000 pounds of 45,830 pounds of melons shipped. On July 10, 1991, load F 279 of 42,180 pounds was sold for 3.5 per pound, and shipped to the Respondents in Yamassee, SC, for repacking and shipment to Baltimore, MD. They were weighed and inspected by Coffee before shipment. This load was rejected without any inspection by the Respondents. The Petitioners received $1,330 for load F 277, nothing for loads F and 279, and Respondents retained $2,459.76 from prior transactions for freight charges on load F 276. Under the terms of the sale, FOB purchaser's truck at grower's field, the Respondents bore the cost of transportation. The Respondents also bore the risk of loss on sales which they made and which were rejected. On the two loads which were not inspected by government inspectors, F and F 277, the Petitioner is entitled to the sales price for the melons. Although there is evidence to support the Respondents' contention that the produce was not within grade specifications, the Respondent had accepted the produce. Contrary to Respondents' assertion that the produce coming from the same field on the same day would all be bad, these loads were not loaded on the same day. Further, most of one of the loads received on the same day from the same field was accepted. Lastly, as stated above, all the loads were inspected by Respondent prior to acceptance. The Respondents owe the Petitioners $1,833.60 on load F 276, $1,570.80 on load F 277, 1833.20 on load F 278, and 1476.30 on load F 279. This is a total of $6,713.90. The Respondents improperly retained $2,359.76 for freight charges, but did pay the Petitioners $1,330 for load F 277. The total owed by the Respondents to the Petitioners is $9,073.66, of which Respondents have already paid $1,330.00. The Respondents still owe the Petitioners $7,743.66 less $32 for the watermelon assessment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: Respondent be given 30 days to settle with the Petitioner in the amount of $7,711.66 and the Petitioner be paid $7,711.66 from Respondent's agricultural bond if the account is not settled. DONE and ENTERED this 6th day of October, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1992. COPIES FURNISHED: Terry McDavid, Esquire 128 South Hernando Street Lake City, FL 32055 F. H. Dicks, III c/o F. H. Dicks Company P.O. Box 175 Barnwell, SC 29812 Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure and Bond 508 Mayo Building Tallahassee, FL 32399-0800 South Carolina Insurance Company Legal Department 1501 Lady Street Columbia, SC 29202 Victoria I. Freeman Seibels Bruce Insurance Companies Post Office Box One Columbia, SC 29202 Richard Tritschler, Esquire Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810
The Issue 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
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
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. Thomas Scott, Sr., a Florida former, contends by his complaint that three loads of watermelons grown and harvested in Florida, were sold directly to Mr. Pagano & Sons, Inc., in the person of Maurice Pagnao, on the following dates, by the following types; in the following weight amounts; at the following price per pound, and for the following total price per load: June 4, 1977, Crimson-Sweet Watermelons, 48,860 lbs., at .03 totaling $1,465.80 June 4, 1977, Crimson Sweet Watermelons, 48,530 lbs., at .03 totaling $1,455.90 June 8, 1977, Crimson Sweet Watermelons, approximately 48,000 lbs., at .02 totaling $960.00 Total for all loads $3,081.70 An examination of the testimony offered in the course of the hearing, supports the Petitioner's contention. The facts in this case also show that Maurice Pagano, acting in behalf of the Respondent, gave money to the Petitioner for having the watermelons loaded for shipment. That amount was $500 and when deducted from the $3,881.70 total price leaves a balance owing to the Petitioner of $2, 381.70. The Respondent has not paid the $2,381.70 which it agreed to pay to the Petitioner and under the facts of the agreement it is obligated to pay the Petitioner. One final matter should be delt with and that pertains to the approximation of the weight of the June 8, 1977, load. The figure used is an approximation, because the Respondent's representative at the loading in Florida, Phil Pepper, took that load away and failed to return the weight ticket. This caused the Petitioner to have to approximate the weight and the approximation is accepted in determining the amount which the Respondent owes the Petitioner.
Recommendation It is recommended that the Respondent be required to pay the Petitioner $2,381.70 for the watermelons it purchased from the Petitioner. DONE AND ENTERED this 21st day of February, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jon D. Caminez, Esquire 1030 East Lafayette Street Suite 101 Tallahassee, Florida 32301 Maurice Pagano 59 Brooklyn Terminal Market Brooklyn, New York 11236 Earl Peterson, Chief Bureau of License and Bend Division of Marketing Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32304
The Issue Whether or not Petitioners (complainants) are entitled to recover $10,258.98, or any part thereof against Respondent dealer and his surety company.
Findings Of Fact Petitioners are growers of watermelons and qualify as "producers" under Section 604.15(5) F.S. Respondent Eddie D. Griffin d/b/a Quality Brokerage is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1) F.S. Respondent United States Fidelity & Guaranty Company is surety for Respondent Griffin d/b/a Quality Brokerage. This cause is governed by the claims made in the amended complaint. (Exhibit P-13) That amended complaint sets out the parameters of the claimed amounts as follows: AGREED PRICE PAID PRICE DIFFERENCE CLAIMED 6-13-92 Inv.#573 45,429 lbs. Jub. melons @ .04/lb.$1,816.80 (paid on 41,720 lbs.) Adv. -700.00 NWPB - 9.08 1,107.72 950.46 157.26 6-14-92 Inv.#586 48,060 lbs. Jub. melons @ .05/lb. 2,403.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.61 1,693.39 1,202.79 490.60 6-14-92 Inv.#587 50,610 lbs. Jub. melons @ .05/lb. 2,530.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 10.12 1,820.38 1,304.28 516.10 6-15-92 Inv.#592 44,800 lbs. Crim. melons @ .05/lb. 2,240.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.96 1,531.04 1,153.04 378.00 6-15-92 Inv.#593 46,340 lbs. Crim. melons @ .05/lb. 2,317.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.27 1,607.73 1,144.33 463.40 6-16-92 Inv.#598 47,170 lbs. Crim. melons @ .05/lb. 2,358.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.43 1,649.07 1,177.37 471.70 6-16-92 Inv.#607 48,320 lbs. Crim. melons @ .05/lb. 2,416.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.66 1,706.34 1,223.14 483.20 6-17-92 Inv.#628 1/ 40,890 lbs. Jub. melons @ .05/lb. 2,044.50 (no inv.# provided producer) Adv. -700.00 NWPB - 8.18 1,336.32 .00 1,336.32 6-17-92 Inv.#626 36,690 lbs. Jub. melons @ .05/lb. 1,834.50 (paid on 27,890 lbs.) Adv. -700.00 NWPB - 7.34 1,127.16 688.92 438.24 6-17-92 Inv.#627 37,300 lbs. Jub. melons @ .05/lb. 1,865.00 (paid on 30,500 lbs.) Adv. -700.00 NWPB - 7.46 1,157.54 818.90 338.64 6-17-92 Inv.#642 43,350 lbs. Job. melons @ .05/lb. 2,167.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.67 1,458.83 1,025.33 433.50 6-18-92 Inv.#643 44,150 lbs. Crim. melons @ .05/lb. 2,207.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.83 1,498.67 1,057.17 441.50 6-18-92 Inv.#644 45,060 lbs. Crim. melons @ .05/lb. 2,253.00 Adv. -700.00 NWPB - 9.01 1,543.99 .00 1,543.99 6-18-92 Inv.#646 43,180 lbs. Crim. melons @ .05/lb. 2,159.00 (paid on 38,380 lbs.) Adv. -700.00 NWPB - 8.64 1,450.36 1,211.32 239.04 6-18-92 Inv.645 47,070 lbs. Jub. melons @ .05/lb. 2,353.50 Adv. -700.00 NWPB - 9.41 1,644.09 .00 1,644.09 6-19-92 Inv.#663 43,520 lbs. Crim. melons @ .05/lb. 2,176.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.70 1,467.30 1,032.10 435.20 6-19-92 Inv.#685 44,820 Crim. melons lbs. @ .05/lb. 2,241.00 Adv. -700.00 NWPB - 8.96 1,532.04 1,083.84 448.20 TOTAL DUE $10,258.98 The amended complaint admits that Respondent's deductions for advances and NWPB were appropriate on each load/invoice, and these are not in contention. The amended complaint admits that Respondent has already made the payments to Petitioners, which are indicated. It is only the claimed shortfall on each load that is at issue. At formal hearing, Petitioners discussed a load they claimed they had delivered to Respondent on 6-20-92. They had neither receipts, weight tickets, nor settlement sheets, (invoices) nor payment from Respondent on this load. This "lost load," as the parties described it, is not named in the amended complaint. Therefore, no findings of fact can be made thereon, due to lack of jurisdiction. Petitioner's Exhibit 1 appears to apply to loads 560, 561, 562, and 563, all loads occurring on 6-11-92. That date and those load numbers also are not listed in the amended complaint. Accordingly, no findings of fact will be made with regard to loads 560, 561, 562 or 563, due to lack of jurisdiction. Petitioners delineated two theories of recovery as to the seventeen claims actually named in the amended complaint. Petitioners claimed the right to recover from Respondents due to Respondent dealer's failure to pay for all or some of the poundage delivered by Petitioners to Respondent dealer on the following loads: 6-13-92 #573, 6-17-92 #628, 6-17-92 #626, 6-17-92 #627, 6-18-92 #644, 6-18-92 #646, 6-18-92 #645, 6- 19-92 #685. Petitioners claim the right to recover from Respondents due to Respondent dealer's failure to pay per pound at the rate of one cent below the "wire price" per pound on the following loads: 6-14-92 #586, 6-14-92 #587, 6- 15-92 #592, 6-15-92 #593, 6-16-92 #598, 6-16-92 #607, 6-17-92 #642, 6-18-92 #643, and 6-19-92 #663. For 6-15-92 18-24 lb. average 4.50 - 5.00 cents, few 6.00 26-32 lb. average 4.50 - 5.00 cents, few 6.00 For 6-16-92 18-24 lb. average 5.00 - 6.00 cents 26-32 lb. average 5.00 - 6.00 cents For 6-17-92 18-24 lb. average 6.00 cents, few higher and lower 26-32 lb. average 6.00 cents, few higher and lower For 6-18-92 18-24 lb. average 6.00 - 6.50 cents, "Wire prices" are printed in "spread" form. Evidence was presented (Composite Exhibit P-14), and the parties are agreed, that the following were the "wire prices" at certain times material. Otherwise, there is no evidence in this record concerning amounts or dates of "wire prices." mostly 6.00, few higher 26-32 lb. average 6.00 - 6.50 cents, mostly 6.00, few higher and lower For 6-19-92 18-24 lb. average 6.00 - 6.50 cents, mostly 6.00, few higher 26-32 lb. average 6.00 - 6.50 cents mostly 6.00, few higher and lower Since no "wire prices" were proven up for the days involved in loads 586, and 587, Petitioners are not entitled to recover on their theory of entitlement for those loads. Upon the allegations of the amended complaint and the "wire prices" proven, it appears that Petitioners have already received payment from Respondent dealer at one cent (or better) below the proven low-end "wire price" on loads 592, 593, 598, and 607. Therefore, Petitioners are not entitled to recover on their theory of entitlement for those loads. Petitioners (grower-producers) believed that they had negotiated an oral contract with Respondent dealer to the effect that the dealer would pay Petitioners at the rate of one cent below the "wire price" per pound on those days that Respondent took delivery from them of their watermelons. Respondent testified contrariwise that although such an arrangement was discussed, the parties' final oral agreement was concluded in terms of an excellent quality of every melon, and after negotiations were completed, the dealer understood that the price he was to pay the producers was just the same price per pound he paid all his other producers on any given day. In determining the daily uniform price per pound, Respondent admitted that he used the "wire price" as a guideline, but never explained exactly how the "wire price" constituted a guideline. The Petitioners and Respondent dealer had dealt with one another over a period of years. In past years they had discussed what was to occur if any loads were refused, in whole or in part, by retail buyers at their ultimate destinations. Over the years, the parties had agreed that for loads involving a "small deduct," that is, a small amount of refused melons, Respondent had unilateral authority to informally agree to dump the bad melons or take whatever he could get for the load and pass on the monetary loss to Petitioners. Petitioners conceded that the discretion to take or not take such losses always had been entirely that of Respondent during the parties' several years of past dealing, and that before 1992, whenever an ultimate recipient had refused melons, the "deduct" had been "worked out" this way with no prior notice to Petitioners. In short, by Petitioners' own evidence, it appears that up until the loads at issue in 1992, Petitioners had always simply accepted the Respondent's calculations concerning refusals for quality without requiring proof by way of a federal inspection. Mr. Randal Roberts Sr. testified that in his opinion, any "deduct" over 300 pounds was not "small." However, no evidence defining an industry standard for the relative terms of "small deducts" or "large deducts" was introduced. In light of the parties' standard arrangement over the whole course of their business dealings, it is deemed that Respondent continued to be within his rights in 1992 to unilaterally decide which melons to pay Petitioners for and which melons not to pay Petitioners for where quality became an issue between himself and the ultimate recipients. Petitioners estimated that on a scale of one to ten, the melons they had delivered to Respondent dealer in 1992 were "about a seven" when they delivered them to him, even though Respondent's agents culled out the really bad melons. It may be inferred therefrom that the loads were no better and were probably in worse condition when they reached their ultimate destinations. Respondent testified that he had dumped all or part of the remaining loads in question or reduced the price per pound from that of the "wire price" due to the poor quality of the melons based on complaints or refusals by the recipients when the melons reached their ultimate destinations. These are loads 573, 628, 626, 627, 644, 646, 645, 685, 642, 643, and 663. Although Petitioners adamantly denied that they had ever agreed to rely on federal inspections to determine which melons were bad and which were good, Respondent had gotten federal inspection sheets (R-2) to support his decision to dump all or part of loads 628, 643, 645, 663, and 685. Respondent dealer introduced his business journal (R-3) to show that load 643 was "bad" and load 644 was "dumped" due to poor quality. Respondent dealer introduced his contemporaneous business journal (R- 3) to show that except for loads 607, 643, 644, 663, and 685 he had paid as much to Petitioners per pound as to anyone else on the respective days he had taken delivery. On those loads he had paid Petitioners less than some other producers whom he dealt with on those days, but contended that he had reduced the price per pound paid to Petitioners on those days on the basis of poor quality, too. Nonetheless, 607 was paid at least at one cent below the "wire price" (See Finding of Fact 14), 643 was shown bad by inspection, 644 was dumped in its entirety per the dealer's journal, and 663 and 685 were shown bad by inspection. Upon the foregoing, it is determined that Respondent was within the parameters of his standard dealings with Petitioners where he reduced the price per pound of loads 643 and 663 on the basis of quality, just as he was within his clear unilateral authority and discretion to dump or discard whole melons from loads 628, 644, 645, and 685. After accounting for the foregoing loads, that leaves only loads 573, 626, 627, and 646 left in issue as to poundage and only load 642, (for which Respondent paid 4 cents per pound instead of one cent below the "spread" of the "wire price" for that day) at issue as to price per pound. As to each of these loads, Respondent produced business records wherein he had made contemporaneous notations concerning the quality complaints and/or number of melons rejected by the ultimate recipients. (R-2) Respondent did not pay Petitioners anything on load 645 because of freight deductions and Respondent also made freight deductions on some other invoices. There is no evidence in this record regarding how the parties had negotiated who would bear the ultimate cost of the freight. However, the Petitioners have not proven any entitlement to recover these charges which Respondent advanced and paid. Likewise, Petitioners also have not set out any trail by which the undersigned can trace any mathematical errors on any loads/settlement sheets to the Respondent dealer over Petitioners. Under the parties' standard mode of doing business, Respondent had clear unilateral authority and discretion to dump or discard whole melons for quality and pay Petitioners nothing for the whole melons dumped or discarded in loads 573, 626, 627, and 646. Upon the foregoing, it is determined that Respondent was also within the parameters of his standard dealings with Petitioners in not paying full negotiated price per pound on load 642 where some lesser price per pound could be negotiated with the ultimate recipient as to quality.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Agriculture enter a final order dismissing all named claims against Respondents. RECOMMENDED this 7th day of July, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1993.
