STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIMMIE MOTT & D. W. NEELY, )

)

Petitioners, )

)

vs. ) CASE NO. 78-2023A

) ANTHONY & JOSEPH PELLEGRINO, ) d/b/a PELLEGRINO & SONS, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on January 19, 1979, in Live Oak, Florida. The following appearances were entered: J. Victor Africano, Live Oak, Florida, for the Petitioners; Jimmie Mott and D.W. Neely and Al Turkington, Tallahassee, Florida, for the Department of Agriculture and Consumer Services. No appearance was entered on behalf of the Respondents.

On or about July 11, 1978, the Petitioners filed a complaint with the Department of Agriculture and Consumer Services, asserting that the Respondents failed to adequately compensate the Petitioners for agricultural goods sold by the Petitioners to the Respondents. Petitioners are seeking to recover the amount of the alleged indebtedness through the Respondents' agricultural commodity dealer's bond which the Respondents filed with the Department. The Respondents answered the Complaint, admitted a portion of the indebtedness, submitted a check for that amount, denied the remainder of the alleged indebtedness, and asserted that they would file a cross-complaint against the Petitioners for alleged wrongs committed by the Petitioners. On October 25, 1978, the Department forwarded the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was scheduled to be conducted on January 19, 1979, by notice of hearing dated November 13, 1978.

The Respondents did not appear at the final hearing, and no one appeared on their behalf. A default was entered against the Respondents, and the Petitioners presented evidence in support of their claims in an uncontested proceeding. The Petitioners each testified in support of their claims, and Al Turkington, an employee of the Department of Agriculture and Consumer Services testified as an additional witness. Subsequent to the hearing, the Respondents filed a Motion to Set Aside Default. The motion has been denied.

FINDINGS OF FACT

1. The Petitioners and the Respondents had a contractual agreement, whereby the Respondents agreed to purchase watermelons from the Petitioners during the 1978 harvest season. The Petitioners were to be compensated for their watermelons by the pound as the melons crossed the scales during loading

   of the melons onto trucks. The actual price fluctuated based upon the market conditions. The Respondents' employees were responsible for picking and loading the melons. Pete Potenza was in charge of the loading operation for the Respondents. Mr. Potenza advised the Respondents that the price for the watermelons would be two and one-half cents per pound for the medium watermelons and three cents per pound for large ones. At the agreed price, the Petitioners would have been entitled to compensation of $1,197.75 for one load of watermelons, and $1,083.50 for another load. The Respondents compensated them

   $958.20 and $866.80 for the respective loads. The price paid by the Respondents was less than had been agreed upon. The Petitioners are entitled to $217.50 additional compensation for the first load, and $239.55 additional compensation for the second load. The Petitioners are entitled to total additional compensation in the amount of $457.05.

   
   

2. There was no dispute as to the quality of the Petitioners' melons. The Respondents picked several loads of melons from the Petitioners subsequent to those which were disputed. Mr. Potenza advised the Petitioners that they would receive additional compensation, but they have not.

   
   

3. The Respondents are licensed with the Department of Agriculture and Consumer Services as an agricultural commodity dealer. The Respondents have filed a $20,000.00 bond with the Department.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties. Section 120.57(1), Florida Statutes (1978 Supp.).

5. Section 604.20(1), Florida Statutes (1978 Supp.) provides: Before any [agricultural commodity dealer's]

   license shall be issued, the applicant therefor

   shall make and deliver to the department a surety bond in the amount of at least $1,000 or such greater amount as the department may

   determine, . . . executed by a surety corporation authorized to transact business in the state.

   Such bond shall be upon a form prescribed or approved by the department and shall be conditioned to secure the faithful accounting for and payment to producers, their agents or representatives, of the proceeds of all agricultural products handled or sold by such dealer.

   
   

   Section 604.21(1), Florida Statutes (1978 Supp.) provides:

   
   

   Any person claiming himself to be damaged by any breach of the conditions of a bond given by a licensed dealer in agricultural

   products as herein before provided may enter

   a complaint therefor to the department . . . .

   Said complaint shall be filed within nine months from the date of the last transaction between the complaining producer and the dealer complained against.

   The remaining paragraphs of Section 604.21, Florida Statutes, provide that should the Department conclude that the producer is entitled to compensation from the Respondents, the Respondents have fifteen days within which to satisfy the Department's order. Thereafter, if the producer is not satisfied, a civil action can be maintained against the Respondents and the surety.

   
   

6. The Petitioners have established that they are entitled to $457.05 in additional compensation for agricultural commodities which they sold to the Respondents. Failure of the Respondents to satisfy this obligation breaches the condition of the bond which the Respondents have filed with the Department.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final order be entered by the Department of Agriculture

and Consumer Services finding that the Petitioners are entitled to $457.05 in additional compensation for agricultural goods which they sold to the Respondents and requiring the Respondents to pay this sum to the Petitioners.

DONE and ENTERED this 20th day of February, 1979, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Robert A. Chastain, Esq. General Counsel Department of Agriculture

and Consumer Services Mayo Building Tallahassee, FL 32304

William F. York, Esq.

GILMAN, MCLAUGHLIN & HANRAHAN

Ten Post Office Square Boston, MA 02109

J. Victor Africano, Esq.

P. O. Box 1450

Live Oak, FL 32060

Joseph Pellegrino, President

A. Pellegrino & Sons, Inc.

24 New England Produce Center Chelsea, MA 02150

E. G. Musleh, Esq.

P. O. Box 924 Ocala, FL 32670

Docket for Case No: 78-002023

Orders for Case No: 78-002023