STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES G. YOUNG, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1169A

) MADDOX BROTHERS PRODUCE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on April 15, 1991, in Wildwood, Florida.

APPEARANCES

For Petitioner: James G. Young, pro se

Route 3 Box 272-A Wildwood, Florida 34758

For Respondent: No appearance made

STATEMENT OF THE ISSUE

Whether Respondent owes payment to Petitioner in the amount of $60,748.78 for watermelons sold by Petitioner to Respondent.

PRELIMINARY STATEMENT

On October 23, 1990, Petitioner filed a complaint with the Florida Department of Agriculture and Consumer services (Department) related to the alleged nonpayment by Respondent for sale of Petitioner's watermelons. On December 14, 1990, the complaint was amended to correct the amount allegedly owed.

The Respondent requested hearing on the matter. The Department referred the case to the Division of Administrative Hearings on February 22, 1991 for further proceedings.

At hearing, Petitioner testified on his own behalf. The Petitioner's complaint and attachments were admitted as Petitioner's exhibit #1. Respondent presented no testimony or exhibits.

No transcript of the hearing was filed. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Between May 18 and June 5, 1990, Petitioner James G. Young sold a total of 40 truckloads of watermelons to Respondent Maddox Brothers Produce, Inc. Petitioner was to have received a price of five cents per pound through May 26, 1990 and four cents per pound through the remainder of the shipping season. Respondent has failed to pay $60,748.78 of the amount owed to Petitioner for such produce.

   
   

2. At no time did Petitioner received any complaint that the watermelons were unsatisfactory.

   
   

3. Respondent is a licensed agricultural dealer engaged in the business of brokering agricultural products, Florida license #0030. Respondent is subject to regulation by the Department. Respondent has posted a Fireman's Fund Insurance Company surety bond #11141308327 in the amount of $50,000 with the Department.

   
   

4. Respondent did not appear at the hearing. No evidence was presented to contradict the testimony of the Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Sections 120.57(1) and 604.21(6), Florida statutes.

   
   

6. As a watermelon grower, Petitioner was a producer of agricultural products, Section 604.15(3) and (5), Florida Statutes, who timely filed a complaint with the Florida Department of Agriculture and Consumer Services alleging that Respondent has failed to pay for his product. Section 604.21, Florida Statutes.

   
   

7. Respondent was a dealer in agricultural products licensed by the State of Florida. Sections 604.15(1) and 604.17, Florida Statutes. Pursuant to Section 607.20, Florida Statutes, Respondent was bonded with Fireman's Fund Insurance Company in the amount of $50,000.

   
   

8. The burden of proof is on the party asserting the affirmative of an issue in an administrative hearing. Florida Department of Transportation v.

J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). The Petitioner has met the burden.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that

The Florida Department of Agriculture and Consumer Services enter a Final Order requiring Maddox Brothers Produce, Inc., to pay to Petitioner the sum of

$60,748.78.

DONE and RECOMMENDED this 26th day of April, 1991, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1991.

COPIES FURNISHED:

The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler General Counsel

515 Mayo Building

Tallahassee, Florida 32399-0800

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture

508 Mayo Building

Tallahassee, Florida 32399-0800

James G. Young Route 3 Box 272-A

Wildwood, Florida 34758

Patricia M. Harper, President Maddox Brothers Produce, Inc. 2124 Forest Avenue

Knoxville, Tennessee 37916

Fireman's Fund Insurance Company Surety Claims Center

Post Office Box 193136

San Francisco, Florida 94119-3136

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

JAMES G. YOUNG,

Petitioner,

vs. DOAH CASE NO. 91-1169A

LB CASE NO 91-0019

MADDOX BROTHERS PRODUCE, INC.,

Respondent.

/

FINAL ORDER

THIS CAUSE, arising under Florida's "Agricultural License and Bond Law" (Sections 604. 15 - 604. 34, Florida Statutes), came before the Commissioner of Agriculture of the State of Florida for consideration and final agency action. On October 23, 1990, the Petitioner, a producer of agricultural products as defined by Section 604.15(3), Florida Statutes, timely filed an administrative complaint pursuant to Section 604.21, Florida Statutes, to collect $60,579.48 for watermelons it sold to Respondent, a licensed dealer in agricultural products, in the spring and early summer of that year pursuant to an oral contract. On December 14, 1990, Petitioner filed an amendment to correct the alleged amount owed to $60,748.78. Respondent's license for the time in question was supported by a bond required by Section 604.20, Florida Statutes, written by Fireman's Fund Insurance Company in the amount of $50,000. The Respondent's answer admitted owing Petitioner $45,158.95 but disputed the balance. This matter was subsequently heard in accordance with provisions of Section 120.57 (1), Florida Statutes, as reflected in the Hearing Officer's Recommended Order, rendered April 26, 1991, a copy of which is attached hereto as Exhibit, to which neither party filed written exceptions.

Upon the consideration of the foregoing and being otherwise fully advised in the premises, it is

ORDERED:

1. The Hearing Officer's findings of fact are adopted in toto as this agency's findings of fact.

   
   

2. The Hearing Officer's conclusions of law are adopted as this agency's conclusions of law. Additionally, the Department concludes as a matter as law, if the Respondent fails to pay the Petitioner, the Department will seek recovery from Fireman's Fund Insurance Company, the Respondent's surety, not to exceed the amount of bond provided for Respondent.

   
   

3. The Hearing Officer's recommendation is accordingly approved and adopted as the appropriate disposition of this case.

   
   

4. Respondent pay the Petitioner the amount of $60,748.78 within fifteen

(15) days after this Order becomes final. This Order is final and effective on the date filed with the Clerk of the Department. In the event Petitioner fails to comply with this Final Order, Fireman's Fund Insurance Company, as surety for Respondent is hereby ordered to provide payment under the conditions and provisions of the bond.

Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the Agency Clerk, 5th Floor, Mayo Building, Tallahassee, FL 32399-0800, and a copy of the same with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.

DONE AND ORDERED this 8th day of July, 1991.

BOB CRAWF0RD

Commissioner of Agriculture

ANN WAINWRIGHT

Assistant Commissioner FILED with Agency Clerk, this 10th day of July, 1991.

Carol Merchant Agency Clerk

Copies furnished to:

James G. Young

Route 3, Box 272-A Wildwood, FL 34758

Maddox Brothers Produce, Inc. 4253 Kingston Pike

Knoxville, TN 37919

Fireman's Fund Insurance Company ATTN: Barbara J. Kennedy, Esquire Post Office Box 193136

San Francisco, CA 94119-3136

William F. Quattlebaum, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

Docket for Case No: 91-001169

Orders for Case No: 91-001169