STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LESTER TOWELL DISTRIBUTORS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-0440A

) VBJ PACKING, INC., and CONTINENTAL )

CASUALTY COMPANY, as surety, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on May 7, 1996, in West Palm Beach, Florida, before Patricia Hart Malono, a duly designated hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Complainant: Ray Towell, President

Lester Towell Distributors, Inc. 900 Lester Towell Boulevard Belle Glade, Florida 33430

For Respondent: Jerome F. Ostrov, Credit Administrator VBJ Packing VBJ Packing, Inc.

1287 West Atlantic Boulevard Pompano Beach, Florida 33069

For Co-respondent: No appearance Continental Casualty

STATEMENT OF THE ISSUE

Whether, under the provisions of sections 604.15 - 604.34, Florida Statutes, Lester Towell Distributors, Inc., is entitled to recover $2,098 for agricultural products ordered by and delivered to VBJ Packing, Inc

PRELIMINARY STATEMENT

On December 19, 1995, the Florida Department of Agriculture and Consumer Services sent a Notice of Filing Amended Complaint via certified mail to VBJ Packing, Inc., ("VBJ") and to its surety, Continental Casualty Company. The amended complaint referenced in the notice was filed by Lester Towell Distributors, Inc., ("Lester Towell"), which alleged that VBJ was indebted to it for $2,098 for various agricultural products ordered by and delivered to VBJ. VBJ 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.

At the hearing, Lester Towell presented the testimony of its president, Ray Towell, and of its secretary/treasurer, Margaret J. (Jeanne) Woodard.

Complainant's Exhibits 1 through 8 were received into evidence. VBJ presented the testimony of its salesman, Franklin Howe, and of its credit administrator, Jerome F. Ostrov. Respondent's Exhibit 1 was received into evidence.

At the hearing, Mr. Ostrov, representing VBJ, made an oral motion to dismiss for lack of subject matter jurisdiction. VBJ's position was that Lester Towell was not a producer or agent or representative of a producer with respect to the subject transactions. Argument was heard on the motion, and the ruling was reserved for the Recommended Order. Lester Towell was given leave to file late-filed exhibits establishing its status as a producer or agent or representative of a producer; a letter regarding Lester Towell's status was timely filed and is identified as Petitioner's Exhibit 9 (late-filed).

No transcript was filed, and neither party submitted proposed findings of facts 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. Lester Towell is a dealer in Florida-grown agricultural products.

   
   

2. VBJ is a dealer in Florida-grown agricultural products.

   
   

3. On May 22, 1995, VBJ placed an order with Lester Towell to purchase a quantity of extra-large green bell peppers. Lester Towell delivered 200 boxes of such peppers to VBJ on May 23, 1995. To fill this order, Lester Towell purchased 63 boxes of peppers from producer Ott Farms, Inc., in Estero, Florida, and 137 boxes from producer Thomas Produce, in Boca Raton, Florida. Lester Towell did not act as agent for these producers; it purchased the products outright.

   
   

4. On May 22, 1995, VBJ placed an order with Lester Towell to purchase a quantity of yellow corn. Lester Towell delivered 100 boxes of such corn to VBJ on May 24, 1995. To fill this order, Lester Towell purchased 100 boxes of corn from producer Wilkinson-Cooper, in Belle Glade, Florida. Lester Towell did not act as agent for this producer; it purchased the products outright.

   
   

5. On May 24, 1995, VBJ placed an order with Lester Towell to purchase a quantity of jalapeno peppers, white corn, and red radishes. Lester Towell delivered two boxes of jalapeno peppers, 26 boxes of white corn, and 20 boxes of red radishes to VBJ on May 25, 1995. To fill this order, Lester Towell purchased 2 boxes of jalapeno peppers from producer Ott Farms, Inc., in Estero, Florida, and 26 boxes of white corn and 20 boxes of red radishes from producer American Growers in Belle Glade, Florida. Lester Towell did not act as agent for these producers; it purchased the products outright.

   
   

6. Lester Towell filed its complaint with the Department of Agriculture and Consumer Services ("Department") pursuant to the provisions of section 604.21(1), Florida Statutes, because VBJ did not pay for the products identified above. There is, however, no evidence to establish that Lester Towell was a producer or the agent or representative of a producer with respect to the

   products for which it seeks payment. It is, therefore, not a "person" entitled to file a complaint with the Department against VBJ and its surety.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Sections 120.57 and 640.21(6), Fla. Stat.

   
   

8. Section 604.21, Florida Statutes, provides:

   
   

   1. Any person claiming himself to be damaged by any breach of the conditions of a bond . . . given by a licensed dealer in agricultural products as hereinbefore provided may enter complaint thereof against the dealer and against the surety, if any, to the department, which complaint shall be a written statement

      of the facts constituting the complaint.

      
      

9. Section 604.20, Florida Statutes, provides:

   
   

   1. Before any license is issued, the applicant therefor shall make and deliver to the department a surety bond or certificate of deposit in the amount of at least $3,000. . . . Such bond or certificate of deposit assignment or agreement shall be upon a form prescribed or approved by the department and shall be conditioned to secure the faithful accounting for and payment to [producers or their agents or representatives]

      of the proceeds of all agricultural products handled or purchased by such dealer.

      
      

      [Emphasis added.]

      
      

10. In this case, the conditions of VBJ's bond were not breached because the bond is conditioned on securing payment to producers or their agents or representatives. Lester Towell was not a producer or the agent or representative of a producer with regard to the transactions which are the subject of its complaint. Lester Towell is not, therefore, a "person" within the purview of section 604.21(1) and is not entitled to recover in this administrative proceeding. 1/

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 dismissing the complaint of Lester Towell Distributors, Inc.

DONE AND ENTERED this 3nd day of July 1996 in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 3rd day of July 1996

ENDNOTE

1/ This conclusion does not, however, affect any remedies at law which may be available to Lester Towell.

COPIES FURNISHED:

Ray Towell

Jeanne Towell Woodward

Lester Towell Distributors, Inc. Post Office Box 9

Belle Glade, Florida 33430

Franklyn Howe

VBJ Packing, Inc.

1287 West Atlantic Boulevard Pompano Beach, Florida 33069

Jerome F. Ostrov VBJ Packing, Inc.

1287 West Atlantic Boulevard Pompano Beach, Florida 33069

Continental Casualty Company Legal Department

CNA Plaza

Chicago, Illinois 60685

Richard Tritschler, Esquire Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

Brenda D. Hyatt, Chief Department of Agriculture Bureau of License and Bond Mayo Building, Room 508

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 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.

Docket for Case No: 96-000440

Orders for Case No: 96-000440