STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN A. TIPTON d/b/a CLASSIE SALES ) CORP., )

)

Petitioner, )

)

vs. ) CASE NO. 95-1350A

) MO-BO ENTERPRISES, INC., AND ) ARMOR INSURANCE COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on September 15, 1995, in Tallahassee, Florida, before Carolyn S. Holifield, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John A. Tipton

Post Office Box 1787 Bradenton, Florida

For Respondent: Mo-Bo Enterprises, Inc.

No Appearance

For Respondent: Armor Insurance Company

No Appearance

STATEMENT OF THE ISSUES

The issue is whether Respondent, Mo-Bo Enterprises, Inc., or its surety is indebted to Classie Sales, Inc. for agricultural products sold to Mo-Bo Enterprises.

PRELIMINARY STATEMENT

On March 17, 1995, Petitioner, John A. Tipton, d/b/a Classie Sales, Inc. (Petitioner), filed a Complaint with the Florida Department of Agriculture and Consumer Services, alleging that Respondent Mo-Bo Enterprises, Inc., (Mo-Bo Enterprises) owed Petitioner for agricultural products which it had sold to Mo- Bo Enterprises.

The Complaint alleged that Respondent, Mo-Bo Enterprises, or its surety, Armor Insurance Company, owed Petitioner $73,066.50. Mo-Bo Enterprises denied the allegations in the Complaint and requested a formal hearing. On March 17, 1995, the matter was referred to the Division of Administrative Hearings to conduct a formal hearing.

On May 1, 1995, the undersigned consolidated this case, Case No. 95-1350A, with Case Nos. 95-1347A, 95-1348A, 95-1349A, and 95-1351A, and set the formal hearing for July 18, 1995. Subsequently, the cases were severed and the formal hearing in this matter was set for September 15, 1995.

At the hearing, Petitioner called two witness: John A. Tipton and Melinda Tipton, sales representative for Classie Sales, Inc. Petitioner offered and had admitted 22 exhibits into evidence. Respondents, Mo-Bo Enterprises, and Armor Insurance Company, after being duly noticed, did not appear at the hearing.

A transcript of the hearing was not ordered by either party. Therefore, proposed recommended orders were required to be filed on or before September 25, 1995. Neither party filed a proposed recommended order in this matter.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence, the following relevant findings of fact are determined:

1. Petitioner, Classie Sales, Inc., is a producer of agricultural products in Florida. Products which it produces include cucumbers, peppers, squash, and eggplant.

   
   

2. Respondent, Mo-Bo Enterprises, is a dealer of agricultural products in the normal course of its business activities.

   
   

3. Respondent, Mo-Bo Enterprises, is licensed by the Florida Department of Agriculture and Consumer Services and is bonded by Co-Respondent, Armor Insurance Company.

   
   

4. Petitioner sold cucumbers, peppers, squash, and eggplant to Respondent, Mo-Bo Enterprises, between the period November 12, 1994 and December 23, 1994. Respondent was given a shipping manifest and sent an invoice for each shipment of agricultural products it ordered and received from Petitioner. The invoice stated that payment in full was due within 21 days of the invoice date and that "thereafter 1 percent additional for each 30 day period or portion thereof."

   
   

5. Petitioner sent nineteen (19) invoices to Respondent, Mo-Bo Enterprises, during the time relevant to these proceedings. Each invoice represented the price and quantity of the products which was agreed to by Petitioner and Mo-Bo Enterprises.

   
   

6. As of the date of the formal hearing, Respondent, Mo-Bo Enterprises, had paid two (2) of the nineteen (19) invoices it received from the Petitioner. The invoices for cucumbers sold on November 14, 1994, and September 14, 1994, in the amount of $2400.00 and $4613.50, respectively, were paid in full. The total amount paid to Petitioner by Respondent was $7013.50.

   
   

7. The total amount invoiced by Petitioner to Mo-Bo Enterprises for agricultural products sold and shipped to Mo-Bo Enterprises, and which remain unpaid, is $66,053.00. In addition to this amount, in accordance with the terms stated on the invoices, Respondent owes Petitioner 1 percent of the amount of each invoice for each 30 day period or portion thereof that the balance remains unpaid.

   
   

8. Despite repeated demands by Petitioner, and promises by Respondent, Mo- Bo Enterprises, to pay the outstanding balance, Mo-Bo Enterprises has not paid

   seventeen (17) invoices which total $66,053.00. As of the date of the formal hearing, this amount remains due and owing and unpaid.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Sections 120.57(1) and 604.21(6), Florida Statutes.

   
   

10. Petitioner is a "producer" of agricultural products as defined in Sections 604.15(5), Florida Statutes. The vegetables sold to Respondent, Mo-Bo Enterprises, by Petitioner come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes.

    
    

11. Respondent, Mo-Bo Enterprises, is a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes.

    
    

12. Dealers of agricultural products are licensed by the Department of Agriculture and Consumer services. Section 604.17, Florida Statutes. Dealers must post a bond or other security as a precondition to licensure, insuring payment to producers for all agriculture products purchased. Sections 604.19 and 604.20, Florida Statutes.

    
    

13. Any person claiming to having been damaged by the breach of the conditions of a bond given by a licensed agricultural dealer, such as Respondent, may file a complaint against the dealer and its surety. Section 604.21, Florida Statutes.

    
    

14. Petitioner has the burden of proving by a preponderance of the evidence that Respondent, Mo-Bo Enterprises, owes Petitioner the sums alleged in the complaints. Florida Department of Transportation v. J.W.C., Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981).

    
    

15. Petitioner has met this burden by presenting competent and substantial evidence supporting its claim to the payment of the amounts shown on the invoices. This evidence was unrefuted by Respondents, who neither appeared at the hearing nor presented any evidence.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter

a Final Order requiring Respondent, Mo-Bo Enterprises, Inc., or its surety, Co-

Respondent, Armor Insurance Company, to pay Petitioner $66,053.00 plus an additional 1 percent of each invoice amount for each 30 day period or portion thereof that the payment remains outstanding.

DONE and ENTERED this 17th day of October, 1995, in Tallahassee, Leon County, 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 17th day of October, 1995.

COPIES FURNISHED:

Richard Tritschler, Esquire Department of Agriculture and

Consumer Services The Capitol, PL-10

Tallahassee, FL 32399-0810

Mo-Bo Enterprises, Inc.

P.O. Box 1899

Pompano Beach, FL 33061

Mark J. Albrechta, Esquire Legal Department

Armor Insurance Company

P.O. Box 15250

Tampa, FL 33684-5250

John Tipton

Classie Sales, Inc.

P.O. Box 1787 Bradenton, FL 34206

Brenda Hyatt, Chief Department of Agriculture and

Consumer Services

508 Mayo Building Tallahassee, FL 32399-0800

Charles Barnard, Esquire

200 SE 6th Street Ste. 205 Ft. Lauderdale, Florida 33301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the Final Order in this case concerning their 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.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA SERVICES DEPARTMENT OF AGRICULTURE AND CONSUMER

Classie Sales, Inc., Petitioner,

vs DOAH CASE NO. 95-1350A

LB CASE No. 95-0048

Mo-Bo Enterprises, Inc., and Armor Insurance Company,

Respondents.

/

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 January 25, 1995, the Petitioner, Classie Sales, Inc., a producer of agricultural products as defined by Section 604.15 (5), Florida Statutes, timely filed an administrative complaint pursuant to Section 604.21, Florida Statutes, to collect $71,034.75 for mixed vegetables it sold to Respondent, a licensed dealer in agricultural products. Respondent's license for the time in question was supported by a bond required by Section 604.20, Florida Statutes, written by Armor Insurance Company in the amount of $75,000. The Respondent's answer denied the claim as valid and requested a hearing. Therefore, this matter was referred to the Division of Administrative Hearings (DOAH) for an administrative hearing in accordance with the provisions of Section 120.57 (1), Florida Statutes. An administrative hearing was scheduled in this matter for July 18, 1995. DOAH continued the hearing scheduled for July 18, 1995, and it was rescheduled for September 15, 1995. The Hearing Officer rendered her Recommended Order on October 17, 1995, a copy of which is attached hereto as Exhibit A, to which neither party filed written exceptions with this Department. The Hearing Officer concluded that the sum of $66,053 was due from the Respondent and recommended that the Department enter a Final Order against the Respondent in that amount.

While the conclusion of the Hearing Officer may be correct, i.e., the Respondent owes $66,053 to the Petitioner, the Department cannot enter a final order as recommended. The Department has no jurisdiction to award late charges, pallet charges, pre-cooling charges and recorder fees that are non-agricultural products under the purview of Florida Statutes, Sections 604.15-604.34. The above said fees totaling $1,663.25 are hereby deducted from the remaining unpaid invoices leaving a balance due Petitioner from the Respondent of $64,389.75.

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

ORDERED:

1. Except as modified herein, the Hearing Officer's Findings of Fact are adopted as this agency's Findings of Fact.

   
   

2. Except as modified herein, the Hearing Officer's Conclusions of Law are adopted as this agency's Conclusions of Law.

   
   

3. While the Hearing Officer's conclusion that the Respondent is indebted to the Petitioner in the amount of $66,053 may in fact be true, only that portion of the claim for agricultural products is enforceable against the Respondent's bond. The claim against Respondent's bond is valid and enforceable only to the extent of $64,389.75.

   
   

4. As qualified herein, the Hearing Officer's recommendation is hereby modified to reflect that the Respondent, Mo-Bo Enterprises, Inc., pay petitioner

$64,389.75 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. The Hearing Officer's Recommendation is further modified to stipulate that in the event Respondent fails to pay Petitioner $64,389.75 within fifteen (15) days of the Final Order, Armor Insurance Company, as Surety for Respondent is hereby ordered to provide payment under the conditions and provisions of the Bond, to BOB CRAWFORD, COMMISSIONER OF AGRICULTURE AND CONSUMER SERVICES, as Obligee on

the Bond. Should responsibility for payment evolve to the Surety, Armor Insurance Company will be notified by this office.

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, Florida 32399-0800, and a copy of same with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.

DONE AND ORDERED this 5th day of December, 1995.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

ANN H. WAINWRIGHT

Assistant Commissioner of Agriculture

Filed with this 5th day of December, 1995.

Joann S. Dixon Agency Clerk

COPIES FURNISHED:

Mr. John Tipton Mo-Bo Enterprises, Inc.

Classie Sales, Inc. P.0. Box 1899

P.O. Box 1787 Pompano Beach, Florida 33061 Bradenton, Florida 34206

Mr. Mark J. Albrechta, Esquire Ms. Carolyn S. Holifield Legal Department Hearing Officer

Armor Insurance Company Division of Administrative

P.O. Box 15250 Hearings, The DeSoto Bldg. Tampa, Florida 33684-5250 1230 Apalachee Parkway

Tallahassee,Florida 32399-1550

Armor Insurance Company Mr. Charles Barnard, Esquire Attn: Mr. G. Kevin Stonaker 200 SE 6th Street, Suite 205

P.O. Box 15250 Fort Lauderdale, Florida 33301 Tampa, Florida 33684-5250

Mr. Mark Moritz Mr. Raphael Impellizzeri

Field Representative Field Representative

Docket for Case No: 95-001350

Orders for Case No: 95-001350