STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. L. NORMAN, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 88-6057A

   ) NORMAN'S COUNTRY MARKET, INC., ) and TRAVELER'S INDEMNITY COMPANY, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Diane Cleavinger, held a public hearing in the above-styled case on March 31, 1989, in Gainesville, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: C. L. Norman

   Route 2, Box 2160

   Starke, Florida 32091

   
   

   For Respondent: David Norman, President

   Norman's County Market, Inc.

   515 Northwest 23rd Avenue Gainesville, Florida 32069

   
   

   For Co-Respondent: No Appearance

   
   

   By complaint filed with the Bureau of License and Bond, Florida Department of Agriculture and Consumer Services (Department), on September 16, 1988, and submitted to the Division of Administrative Hearings on December 7, 1988 for hearing, Petitioner seeks payment of a balance due on vegetable produce sold and delivered to Respondent from November, 1987 through July, 1988. Respondent answered the complaint on October 28, 1988. Respondent's answer admitted the amount of the indebtedness claimed by Petitioner, but asserted a counterclaim against Petitioner that Petitioner owed Respondent money. No supporting documentation was submitted with the answer.

   
   

   At the hearing, Petitioner testified in his own behalf and presented one composite exhibit which was received into evidence. The Respondent presented the testimony of its President, David Norman. Respondent offered no exhibits at the hearing, but indicated that if given a few more days it could gather together the evidence to supports its counterclaim that C.L. Norman owed Respondent money. Respondent's request was granted. Respondent was given until 5:00 p.m. on Tuesday, April 4, 1989 to submit such evidence. No such evidence was submitted by Respondent.

   Neither Petitioner nor Respondent submitted posthearing proposed findings of fact and conclusions of law as allowed by Section 120.57(1)(b)4., Florida Statutes.

   
   

   FINDINGS OF FACT

   
   

   1. 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 (1985).

      
      

   2. At all times pertinent to this proceeding, Respondent was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1985), and bonded by Respondent Travelers Indemnity Company (Travelers).

      
      

   3. At all times pertinent to this proceeding, Respondent Travelers was authorized to do business in the State of Florida.

      
      

   4. The complaint filed by Petitioner was filed timely in accordance with Section 604.21(1), Florida Statutes.

      
      

   5. From November 5, 1987, through June 10, 1988, Respondent purchased from Petitioner 71 dozen squash, 375 dozen collard greens, 247 dozen mustard greens and 147 dozen turnip greens for a total price of $7,386.00.

      
      

   6. All produce was delivered between November 5, 1987 and June 10, 1988.

      
      

   7. No payments have been made by Respondent for the above produce.

      
      

   8. Respondent has not denied receiving the produce nor did Respondent complain about the produce's quality or condition upon delivery.

      
      

   9. Respondent owes $7,386.00 to Petitioner.

      
      

      CONCLUSIONS OF LAW

      
      

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

       
       

   11. Respondent was a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes, and, as such, was required to be licensed by the Department pursuant to Section 604.17, Florida Statutes. As a requirement of licensing, Respondent had to show the Department evidence of a surety bond or a certificate of deposit in accordance with Section 604.20, Florida Statutes (1985) and Rule 5H-1.01, Florida Administrative Code. Respondent was properly bonded by Respondent Travelers.

       
       

   12. The Petitioner, a "producer" of agricultural products as defined by Section 604.15(5), Florida Statutes (1985) filed a timely complaint against Respondent and his surety, in accordance with Section 604.21, Florida Statutes alleging, among other things, that Respondent had refused to pay for "agricultural products" as defined by Section 604.15(3), Florida Statutes (1985) which were sold and delivered to Respondent during the period from November 5, 1987, through June 10, 1988.

   13. The evidence is clear that Respondent owes Petitioner $7,386.00 for vegetable produce sold and delivered to Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be ordered to pay to the Petitioner the sum of

$7,386.00. It is further RECOMMENDED that if Respondent fails to timely pay the

Petitioner as ordered, then Respondent Travelers be ordered to pay the Department as required by Section 604.21, Florida Statutes (1985) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes.

DONE and ORDERED this 18th day of May, 1989, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 May, 1989.

COPIES FURNISHED:

C. L. Norman Route 2, Box 2160

Starke, Florida 32091

David Norman

Norman's Country Market, Inc.

515 Northwest 23rd Avenue Gainesville, Florida 32069

Traveler Indemnity Company Attention Breet A. Ragland 988 Woodcock Road

Suite 102

Orlando, Florida 32803

Doyle Conner, Commissioner Department of Agriculture and

Consumer Services The Capitol

Tallahassee, Florida 32301

Mallory Horne, Esquire General Counsel

Department of Agricultural and Consumer Services

Mayo Building, Room 513 Tallahassee, Florida 32301

Clinton H. Coulter, Jr. Attorney at Law Department of Agriculture and Consumer Services Mayo Building

Tallahassee, Florida 32399-0800

Docket for Case No: 88-006057

Orders for Case No: 88-006057