STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOMESTEAD POLE BEAN )

COOPERATIVE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-2377A

) MO-BO ENTERPRISES, INC., and ) ARMOR INSURANCE COMPANY, as )

Surety, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case before Patricia Hart Malono, Hearing Officer of the Division of Administrative Hearings, on September 6, 1995, at Miami, Florida.

APPEARANCES

The parties were represented at hearing as follows: For Petitioner: Charles W. Nelson, Jr., Comptroller

Homestead Pole Bean Cooperative, Inc. 26000 South Dixie Highway

Post Office Box 2248 Naranja, Florida 33032

For Respondent: No appearance Mo-Bo Enterprises

For Respondent: No appearance Armor Insurance Co.

STATEMENT OF THE ISSUE

Whether Homestead Pole Bean Cooperative, Inc., is owed $10,475.35 for agricultural products ordered by and delivered to Mo-Bo Enterprises, Inc.

PRELIMINARY STATEMENT

On April 7, 1995, the Florida Department of Agriculture and Consumer Services sent a Notice of Filing of a Complaint via certified mail to Mo-Bo Enterprises, Inc., ("Mo-Bo") and to Armor Insurance Company ("Armor"), its surety. The complaint referenced in the notice was filed by Homestead Pole Bean Cooperative, Inc., ("Homestead"), which alleged that Mo-Bo was indebted to it for $10,475.37 for various agricultural products which were ordered by and delivered to Mo-Bo. Mo-Bo timely filed an answer denying the validity of the complaint. The case was referred to the Division of Administrative Hearings for

a formal hearing to be conducted pursuant to section 120.57(1), Florida Statutes. By Notice of Hearing dated June 22, 1995, the formal hearing in this matter was scheduled for September 6, 1995.

At the hearing, Homestead presented the testimony of William Fred Moore, Jr., its General Manager, and of Charles W. Nelson, Jr., its Comptroller.

Homestead's Exhibits II - VIII were offered and admitted into evidence. Although Mo-Bo and Armor were duly notified of the hearing, neither appeared. No transcript of the proceedings was ordered, and Homestead did not file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. Homestead is an agent for producers of Florida-grown agricultural products.

   
   

2. Mo-Bo is a dealer in such products in the normal course of its business and is bonded by Armor.

   
   

3. During the period from December 2, 1994, until January 9, 1995, Mo-Bo ordered green beans and squash from Homestead. In accordance with the longstanding practice of Homestead when doing business with Mo-Bo, the orders were accepted by telephone and the items were loaded onto trucks sent by Mo-Bo to Homestead's warehouse.

   
   

4. Homestead sent the following invoices to Mo-Bo for agricultural products order by and delivered to Mo-Bo:

   
   

   December 6, 1994	Invoice Number 75636	$2,590.00
   December 15, 1994	Invoice Number 75895	5,253.85
   December 21, 1994	Invoice Number 75994	200.00
   January 2, 1995	Invoice Number 76161	576.00
   January 5, 1995	Invoice Number 76232	(109.00)
   January 12, 1995	Invoice Number 76348	1,332.00
   January 12, 1995	Invoice Number 76349	632.50
   TOTAL		$10,475.35

   
   

   The invoice amounts were adjusted by Homestead to account for credits given for products which were unsatisfactory, and payment was due twenty days from the date of each invoice.

   
   

5. Despite repeated demands, Mo-Bo has not paid any of the amounts reflected in these invoices. As of September 6, 1995, the date of the formal hearing, $10,475.35 remained due and owing to Homestead.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. 120.57(1), Fla. Stat.

   
   

7. Dealers of agricultural products are required to be licensed by the Department of Agriculture and Consumer Services. In order to insure payment by dealers for agricultural products purchased, such dealers must post a bond or

   other security as a condition of licensure. 604.19, .20, Fla. Stat. The vegetables sold in this case are agricultural products, as defined by section 604.15(3), Florida Statutes.

   
   

8. Any person claiming to have been damaged by a dealer's failure to pay for agricultural products duly ordered, delivered, and accepted, may file a complaint against the dealer and its surety. 604.21, Fla. Stat.

   
   

9. The products ordered from Homestead and invoiced as set out above were delivered to Mo-Bo. Mo-Bo has failed to pay the amounts reflected in these invoices and owes Homestead $10,475.35, as claimed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter

a final order ordering Mo-Bo Enterprises, Inc., to pay $10,475.35 to Homestead Pole Bean Cooperative, Inc., and, if Mo-Bo Enterprises, Inc., does not pay this amount, ordering Armor Insurance Company to pay this amount, up to its maximum liability under its bond.

DONE AND ENTERED this 10th day of October 1995, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 10th day of October 1995.

COPIES FURNISHED:

Charles W. Nelson, Jr., Comptroller Homestead Pole Bean Cooperative, Inc. 26000 South Dixie Highway

Post Office Box 2248 Naranja, Florida 33032

Charles D. Barnard, Esquire

200 Southeast 6th Street Suite 205

Fort Lauderdale, Florida 33301

Mark J. Albrechta, Esquire Armor Insurance Company Legal Department

Post Office Box 15250 Tampa, Florida 33684-5250

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

Tallahassee, Florida 32399-0810

Richard Tritschler, Esquire General Counsel

Department of Agriculture and Consumer Services

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture and

Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

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 10 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.

Docket for Case No: 95-002377

Orders for Case No: 95-002377