STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SIX L'S PACKING COMPANY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-2947A

) VIC MAHNS, INC., and SAFECO ) INSURANCE COMPANY OF AMERICA, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 7, 1988, at Naples, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

For Petitioner: Mark London, Esquire

4030C Sheridan Street Hollywood, Florida 33021

For Respondent: Dan B. Guernsey, Esquire

Welbaum, Zook & Jones 2701 South Bayshore Drive Penthouse Suite

Miami, Florida 33133-5390

The Petitioner, Six L's Packing Company, Inc. (hereafter referred to as Packing Company), filed an amended complaint with the Department of Agriculture against Respondents, Vic Mahns, Inc. (Mahns) and his surety, Safeco Insurance Company of America (Safeco), to enforce a bond and recover a debt of $20,097.50 due under Chapter 604, Florida Statutes. This sum represents the purchase price owed to Packing Company for produce delivered to Mahns, "free on board" to place of shipment.

Mahns did not appear, nor was the company represented during the proceedings. The attorney for Safeco, the surety, answered the amended complaint and appeared at hearing. During the hearing, the Petitioner called one witness and submitted three exhibits which were admitted into evidence. No additional evidence was submitted by the parties.

A transcript of the hearing was not ordered. The parties waived the opportunity to submit proposed findings of fact, but the thirty-day time requirement for the filing of the Recommended Order was not waived.

FINDINGS OF FACT

1. On or about May 1, 1987, until June 30, 1987, Mahns was a licensed dealer in agricultural products in Florida. In order to become licensed, Mahns

   was required to execute an indemnity bond. The purpose of the bond was to secure payment to producers or their agents for all agricultural products handled or purchased by Mahns in Florida.

   
   

2. The Respondent Safeco was the surety for the indemnity bond at all times material to these proceedings.

   
   

3. The Petitioner, Packing Company, is a corporation located in Immokalee, Florida. Its purpose is to conduct business by finding buyers for produce which is grown in Florida and brought to the packing house to be sold and prepared for shipping. The company acts as an agent or representative for producers in the Immokalee, Florida, area.

   
   

4. The way business was conducted between Mahns and Packing Company was as follows:

   
   

   Mahns contacted Packing Company by telephone and placed purchase orders which identified the quantity, the product, the accepted price per unit, and the total amount due on each order. A manifest, or shipping order, was then completed by hand by the seller as a record of the transaction.

   
   

5. At all times in the ongoing business relationship, Mahns secured its own truck drivers to transport the produce. A truck driver, as agent for Mahns, would inspect the produce he was expected to transport with an employee from Packing Company. The driver would then sign the manifest on behalf of Mahns. The document reflected that the produce was received in good condition and that the delivery count was accurate. In all four shipments which are involved in this proceeding, the usual procedures were properly completed and documented.

   
   

6. Packing Company, through testimony and the introduction of its business records, proved that Mahns owes $20,097.50 for the purchase of Florida produce consisting of peppers, squash, and cucumbers between May 1, 1987, and May 22, 1987.

   
   

7. It is officially noticed that Packing Company's original complaint was filed on January 19, 1988, within nine months from the date of sale.

   
   

8. Mahns breached the condition of its bond with Safeco which required that payment be made to the agents of producers for all agricultural products handled or purchased by Mahns in Florida.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Sections 120.57(1) and 604.21, Florida Statutes.

   
   

10. Although Packing Company is not a "producer" as defined in 604.15(5), Florida Statutes, the company acts as the agent or representative of various producers of peppers, squash, and cucumbers, which are agricultural products. The relationship is recognized under Florida case law. Quality Fruit Buyers, Inc. v. Killarney Fruit Co., 269 So.2d 424 (Fla. 2nd DCA 1971).

11. As an agent for producers of Florida agricultural products, Packing Company is clearly within the class of persons that Chapter 604, Florida Statutes, seeks to protect with the bonding requirements. The company was damaged by Mahns' breach of the statutory bond conditions when Manns filed to pay the outstanding balance of $20,097.50 currently owed to Packing Company.

    
    

12. Packing Company timely and properly filed a complaint pursuant to Section 604.21, Florida Statutes.

    
    

13. Based upon the foregoing findings of fact, it is concluded as a matter of law that Mahns was a licensed and bonded agricultural dealer under Sections 604.17-604.20, Florida Statutes. Safeco provided the bond as surety as required in Section 604.21, Florida Statutes. Packing Company established the delivery and acceptance of the agricultural products as defined by Section 604.15(3), Florida Statutes. It was proved that $20,097.50 is owed to Packing company by Mahns for deliveries between May 1, 1987, and May 22, 1987.

Based on the foregoing, it is RECOMMENDED:

1. That the Department of Agriculture enter a final order requiring the Respondent Mahns to make payment to the Petitioner Packing Company in the amount of $20,097.50.

   
   

2. In the event that Mahns does not comply with the Department's order within fifteen days from the date the order becomes final, Safeco should be ordered to provide payment under the conditions and provisions of the bond furnished to Mahns.

DONE AND ENTERED this 8th day of November, 1988, at Tallahassee, Florida.

VERONICA E. DONNELLY,

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1988.

COPIES FURNISHED:

Mark London, Esquire 4030C Sheridan Street Hollywood, Florida 33021

Dan B. Guernsey, Esquire Welbaum, Zook & Jones 2701 South Bayshore Drive Penthouse Suite

Miami, Florida 33133-5390

Hon. Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-0810

Ben H. Pridgeon, Jr., Chief Division of Marketing Bureau of License and Bond Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32399-0800

Docket for Case No: 88-002947

Orders for Case No: 88-002947