STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALSTON PURINA COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1755A

) SWEETWATER MUSHROOMS, INC., )

)

Respondent. )

and )

) SAFECO INSURANCE COMPANY OF ) AMERICA, INC., )

)

Co-Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on August 4, 1983, at Tavares, Florida.

APPEARANCES

For Petitioner: Lowell Swanberg, Esquire

Post Office Box 297 Zellwood, Florida 33798

For Respondent: Frank Healey

2311 63rd Avenue, East Unit E

Bradenton, Florida 34302

For Co-Respondent: Jay B. Verona, Esquire

405 Pasadena Avenue, South

St. Petersburg, Florida 33707

By letter received at the Department of Agriculture and Consumer Services May 4, 1983, David Healey, President of Sweetwater Mushrooms, Inc., confirmed his earlier letter was a request for formal hearing. The Department considered this request to stay the Order entered February 25, 1983, finding Respondent in default in this dispute since Respondent had not timely requested a hearing.

At the hearing the parties stipulated that Respondent owed Petitioner

$11,050.50 but has made payments totaling $1,100 leaving a balance of $9,950.50. The parties also stipulated that since these mushrooms were sold to Respondent, Zellwood Farms, Inc., has been sold by Ralston Purina Company to Lyon Foods, Inc., that the accounts receivable were transferred with the sale, and that Lyon Foods as owner of Zellwood Farms has replaced Ralston Purina as the Petitioner in this case. The parties then agreed that an amicable agreement could be

reached which would forestall Petitioner going against the surety on Respondent's bond. Accordingly, a recess was taken to allow Mr. Healey and Mr. Swanberg to attempt to resolve the dispute. When the hearing reopened a few minutes later, the parties announced that they had agreed to stay further proceedings in this case upon the promise of Respondent to pay $1,000 per month to Petitioner commencing September 1, 1983, and at the expiration of six months a reevaluation of Respondent's ability to pay the balance of $3,950.50 at one time would be made. However, if Respondent is unable to pay the balance owed following the February 1, 1984, payment, Respondent will continue the payments of $1,000 per month until the entire sum owed is liquidated. It is concluded that this settlement agreement is the most beneficial solution for all parties involved. Petitioner's agreement to accept payments which Respondent is confident he can make, should be treated as a Voluntary Dismissal of its petition, without prejudice. In the event Respondent defaults on his payments under this stipulated agreement, Petitioner should be able to refile its claim with the Department of Agriculture and Consumer Services.

It is

RECOMMENDED that a Final Order be entered accepting Petitioner's portion of this settlement agreement as a Voluntary Dismissal of its complaint against Sweetwater Mushrooms, Inc., without prejudice to refiling this complaint if Respondent fails to make the $1,000 per month payments as agreed.

ENTERED this 15th day of August, 1983, at Tallahassee, Florida.

K. N. AYERS, 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 August, 1983.

COPIES FURNISHED:

Lowell Swanberg, Esquire Post Office Box 297 Zellwood, Florida 33798

Mr. Frank Healey

2311 63rd Avenue, East Unit E

Bradenton, Florida 34302

Jay B. Verona, Esquire

405 Pasadena Avenue, South

St. Petersburg, Florida 33707

The Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Robert A. Chastain, Esquire Department of Agriculture and

Consumer Services Mayo Building

Tallahassee, Florida 32301

Glenn A Bissett

Bureau of License and Bond Department of Agriculture and

Consumer Services

Room 418, Mayo Building Tallahassee, Florida 32301

Docket for Case No: 83-001755

Orders for Case No: 83-001755