STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN W. THURMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2048A

) DON R. SMITH d/b/a WABASH VALLEY SALES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Homestead, Florida, on February 26, 1979, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Joseph S. Marcus, Esquire

317 North Krome Avenue Homestead, Florida 33030

For Respondent: None

ISSUE

Whether Respondent is indebted to Petitioners in the amount of $7,152, as alleged in Petitioner's complaint.

The hearing in this matter was originally set for January 22, 1979. Respondent orally requested a continuance on January 19, 1979, which was granted. At the rescheduled hearing on February 26, 1979, neither Respondent nor any representative in his behalf appeared at the hearing. A Supplemental Notice of Hearing had been issued by the Hearing Officer on February 2, 1979. In view of Respondent's absence, the matter was tried as an uncontested proceeding.

FINDINGS OF FACT

1. Petitioners are producers of agricultural products in Florida. Respondent Don R. Smith, d/b/a Wabash Valley Sales, Vincennes, Indianna, is a licensed dealer in agricultural products pursuant to Chapter 604, Florida Statutes. Respondent was bonded pursuant to Chapter 604 as such a Florida dealer in the amount of $20,000 during the period June 4, 1977 to June 3, 1978. Surety on the bond was Fidelity and Deposit Company of Maryland, Baltimore, Maryland. The bond is conditioned to secure the faithful accounting for and payment to producers of the proceeds of all agricultural products handled or sold by the bonded dealer. (Testimony of Addison, Petitioners' Exhibit 4)

2. During the spring of 1978, Petitioners made arrangements with M. A. Bridgeman, representative of Respondent, to grade, pack, sell, and ship tomatoes produced by Petitioners at varying prices per box. It was agreed between the parties that Respondent would be paid $1.60 per box for the above services and that the balance of the selling price would be remitted to Petitioners. There was no written contract between the parties, as is customary in the trade, nor any specified period for accounting for the proceeds of the sales. (Testimony of Addison, Bridgeman, Complaint)

   
   

3. During the period April 10 to May 5, 1978, petitioners provided a total of 2,460 boxes of various size tomatoes to be sold for the total price of

   $12,588.80, in accordance with the terms of their agreement. Six of the lots were sold in April, 1978, and two were sold on May 3 and May 5, 1978, to various in-state and out-of-state purchasers by Respondent. In some instances, Bridgeman received payment from purchasers which he immediately placed in Respondent's bank account. Some payments were made directly to Respondent's place of business in Indiana. The entire sum of $12,588.80 was collected in this manner by Respondent or his agent. (Testimony of Addison, Bridgeman, Petitioners' Exhibits 2-3)

   
   

4. Under the terms of the agreement, Respondent's fee for handling the tomatoes amounted to $3,936, leaving a balance due and owing Petitioners of

   $8,652.80. Although Petitioners demanded an accounting from Respondent on several occasions, Respondent did nothing in this respect until August 22, 1978, at which time he remitted a check to Petitioners in the amount of $1,500. A notation on the check indicated that it was in partial payment for tomatoes. (Testimony of Addison, Bridgeman, Petitioners' Exhibit 6)

   
   

5. Not having received the balance of $7,152.80 from Respondent, Petitioners filed a complaint with the Florida Commissioner of Agriculture on August 30, 1978, pursuant to Chapter 604, Florida Statutes, and notice of such complaint was provided Respondent by the Department of Agriculture and Consumer Services on September 26, 1978. Respondent filed an answer to the complaint on October 10, 1978, wherein he admitted indebtedness in the amount of $5,652, but claimed that the total amount involved in the transactions was only $7,152, and further requested a hearing in the matter. (Testimony of Addison, Petitioner's Exhibits 5-6)

   
   

   CONCLUSIONS OF LAW

   
   

6. Pursuant to Section 604.21, Florida Statutes, a person claiming to be damaged by any breach of the conditions of a bond given by a licensed dealer in agricultural products may file a complaint with the Department of Agriculture and Consumer Services within nine months from the date of the last transaction between the parties. The department is then required to investigate the matter and, if warranted, order a Chapter 120 hearing and thereafter issue a final order as to the merits of the complaint. Section 604.21 further provides that a Respondent shall have fifteen days in which to "make effective and satisfy the department's order" and, if he does not, the producer may institute civil proceedings for damages, court costs, and a reasonable attorney's fee. These provisions presuppose that adverse findings are made against a Respondent in the departmental order.

   
   

7. The bond in question is conditioned to secure faithful accounting for and payment to producers of proceeds of agricultural products handled by a licensed dealer. The uncontroverted evidence in this case establishes that Respondent was a dealer in agricultural products at the times in question, and

"handled" Petitioners' tomatoes in the amount of $12,588.80 under the terms of an oral agreement between the parties. The evidence further shows that Respondent sold the tomatoes in that total amount and, after deduction of agreed fees for handling and selling in the amount of $3,936, has reimbursed Petitioners only in the amount of $1,500, leaving a total due and owing of

$7,152.80. It is apparent that Respondent has failed to "faithfully account for" and make "payment to producers" as required under the bond.

RECOMMENDATION

That the Department of Agriculture and Consumer Services issue a final order requiring the Respondent herein to make payment in the amount of $7,152.80 to Petitioners herein within fifteen days of Respondent's receipt of the said final order.

DONE and ENTERED this 9th day of March, 1979, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Joseph S. Marcus, Esquire

317 North Krome Avenue Homestead, Florida 33030

Don R. Smith d/b/a Wabash Valley Sales Post Office Box 266

Vincennes, Indiana 47591

Earl Peterson

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32304

Docket for Case No: 78-002048

Orders for Case No: 78-002048