STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUBOIS FARMS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-1347A

) MO-BO ENTERPRISES, INC., AND ) GENERAL ACCIDENT INSURANCE COMPANY ) OF AMERICA, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to Notice, a formal hearing in this case was held on July 18, 1995, by videoconference between West Palm Beach, Florida and Tallahassee, Florida before Carolyn S. Holifield, a Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mike D. Bess, Qualified Representative

Marketing Management Services

Florida Fruit and Vegetable Association Post Office Box 140155

Orlando, Florida 32814-015

For Respondent: Zoe Krikorian, Esquire

General Accident Insurance Company Brickell Centre, Suite 900

799 Brickell Avenue

Miami, Florida 33131-2805 STATEMENT OF THE ISSUES

The issue presented is whether Petitioner is entitled to recover $800.00 as payment for eggplant sold to Mo-Bo Enterprises, Inc.

PRELIMINARY STATEMENT

Petitioner, Dubois Farms, Inc., filed a complaint with the Department of Agriculture and Consumer Services (Department) alleging that Respondent Mo-Bo Enterprises, Inc., (Mo-Bo) and Respondent General Accident Insurance Company (General Accident), Mo-Bo's surety, are indebted to Petitioner in the amount of

$800.00 for 100 cartons of eggplant purchased from Petitioner. Respondent, Mo- Bo, timely denied the allegations of that complaint and requested a formal hearing. By letter dated March 16, 1995, the matter was referred to the Division of Administrative Hearings for a formal hearing. The hearing was set for July 18, 1995.

Petitioner filed a motion to continue on May 26, 1995. The motion was denied. On July 17, 1995, Respondent, Mo-Bo, moved to continue the final hearing. Respondent's motion, which Petitioner opposed, was denied.

The hearing convened on July 18, 1995. At the hearing, Petitioner offered five exhibits into evidence. Counsel for Respondent, General Accident, stipulated to the admissibility of the exhibits, noting that she was not stipulating to the truth or accuracy of the facts alleged therein. Petitioner's Exhibits numbered 1-5 were admitted into evidence. No evidence or testimony was presented by Respondent, General Accident.

Mo-Bo Enterprises, Inc., did not appear at the hearing, although a motion for continuance was made by counsel for General Accident on behalf of Mo-Bo.

The motion was denied.

None of the parties submitted post-hearing proposed findings of fact.

FINDINGS OF FACT

1. In January 1995, Petitioner, Dubois Farms, filed a complaint with the Department. The complaint alleged that Respondent, Mo-Bo, and Respondent, General Accident, was indebted to Petitioner in the amount of $800.00 for 100 cartons of eggplant purchased from Petitioner.

   
   

2. The Department gave notice to the Respondents that the complaint had been filed.

   
   

3. On or about February 24, 1995, Mo-Bo responded to the complaint, denied the allegations, and requested a hearing.

   
   

4. At hearing, Petitioner offered and had admitted into evidence Exhibits numbered 1-5, subject to Respondent General Accident's hearsay objection. No other proof was offered. Since Petitioner's proof was hearsay, and not subject to any exceptions to the hearsay rule, it cannot support a finding of fact that Mo-Bo is indebted to Petitioner as claimed.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

6. When served with the Petitioner's complaint, Mo-Bo contested the facts in the complaint and requested a formal hearing. See Section 604.21, Florida Statutes.

   
   

7. The burden of proof is on the party asserting the affirmative of an issue in an administrative hearing. Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (1st DCA 1981). Petitioner has not met its burden, and has failed to prove that Respondent is indebted to it for $800.00.

   
   

8. To meet its burden, Petitioner must offer relevant evidence. In order to be relevant, the evidence must have a tendency to prove or disprove a material fact in the case. Section 90.401, Florida Statutes. A determination of relevancy requires that the facts for which the evidence is offered be identified. By failing to offer testimony at the hearing, Petitioner never

   identified the facts for which the evidence was offered to prove. Thus Petitioner did not establish that the evidence it presented was relevant.

   
   

9. Furthermore, Petitioner's proof, consisting of the two affidavits, the letter, the check, and the facsimile transmission was hearsay. This hearsay evidence is not corroborative of any non-hearsay evidence and cannot support any finding of fact. Section 120.58 (1)(a), Florida Statutes. Consequently, Petitioner has failed to present competent and substantial evidence which would support the claim that it is entitled to recover $800.00 from Respondents.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the complaint filed by

Dubois Farms, Inc., against Mo-Bo Enterprises, Inc., and its surety, General Accident Insurance Company of America.

DONE and ORDERED this 30th day of August, 1995, in Tallahassee, Florida.

CAROLYN S. HOLIFIELD

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 30th day of August, 1995.

COPIES FURNISHED:

Mike D. Bess, Qualified Representative Marketing Management Services

Florida Fruit and Vegetable Association

P.O. Box 140155

Orlando, Florida 32814-015

Zoe Krikorian, Esquire Brad A. Thomas, Esquire

General Accident Insurance Company Brickell Centre - Suite 900

799 Brickell Avenue

Miami, Florida 33131-2805

Don Bieda, Esquire Legal Department

General Accident Insurance Company

436 Walnut Street

Philadelphia, Pennsylvania 19105-1109

Richard Tritschler, Esquire Department of Agriculture and

Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

Mo-Bo Enterprises, Inc.

P.O. Box 1899

Pompano Beach, Florida 33061

Charles Barnard, Esquire

200 SE 6th Street, Suite 205 Fort Lauderdale, Florida 33301

Brenda Hyatt, Chief

Bureau of Licensing & Bond Department of Agriculture

508 Mayo Building

Tallahassee, Florida 32399-0800

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

Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Agriculture 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 consult with the Department of Agriculture concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 95-001347

Orders for Case No: 95-001347