STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRESH PRIDE SALES, INCORPORATED, )

)

Petitioner, )

)

vs. ) Case No. 97-4205A

)

SANFORD PRODUCE EXCHANGE, )

INCORPORATED and AUTO OWNERS )

INSURANCE COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Administrative Law Judge, Division of Administrative Hearings, held a formal hearing in this matter by telephonic communication on December 15, 1997, in Bartow, Florida.

APPEARANCES

For Petitioner: Troy Cobb, Qualified Representative Post Office Box 577

Wauchula, Florida 33873 For Respondents: No appearance.

STATEMENT OF THE ISSUE

Does Respondent Sanford Produce Exchange, Incorporated (Sanford), owe Petitioner for agricultural products purchased by Sanford from Petitioner between April 1, 1997, and April 25, 1997?

PRELIMINARY MATTERS

By letter dated July 18, 1997, the Department of Agriculture and Consumer Services (Department) advised Respondent Sanford and Respondent Auto Owners Insurance Company (Auto Owners) that Petitioner had filed a Complaint alleging that Sanford owed Petitioner $9,176.80 for agricultural products purchased by Sanford from Petitioner between April 1, 1997, and April 25, 1997. Sanford did not respond to the Complaint. Auto Owners, as surety, timely filed an answer to the Complaint wherein it denied all allegations. However, Auto Owners subsequently filed Surety's Amended Response and Notice of Withdrawal of Defense wherein Auto Owners withdrew its previous denial or objections to the Complaint. By letter dated September 7, 1997, the Department referred the matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a hearing.

At the hearing, Petitioner presented the testimony of Ken Evers, Phillip Cobb, and David Priest. Petitioner's Exhibits One through Eight were received as evidence. Neither Sanford nor Auto Owners appeared or were represented at the hearing.

There was no transcript of this proceeding filed with the Division. None of the parties filed any proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times pertinent to this proceeding, Petitioner was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statutes, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes.

2. At all times pertinent to this proceeding, Sanford was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes. Sanford was issued license number 9434 by the Department, which is supported by bond number 957712 20250566 in the amount of $31,000, written by Auto Owners, as surety, with an inception date of October 25, 1996, and an expiration date of October 24, 1997.

3. The Complaint was timely filed by Petitioner in accordance with Section 604.21(1), Florida Statutes.

4. Beginning April 1, 1997, and ending on April 25, 1997, Sanford ordered and agreed to pay for the following agricultural products from Petitioner, which Petitioner shipped by truck to Sanford:

   Date Item Quantity Price Total

   
   

   4/1/97	Green Cabbage		100	$ 4.50	$ 450.00
   4/1/97	Green Cabbage	Bags	325	$ 3.50	$1,137.50
   4/2/97	Green Cabbage		125	$ 4.50	$ 562.50
   4/2/97	Green Cabbage	Bags	100	$ 3.50	$ 350.00
   4/17/97	Green Cabbage	Bags	226	$ 3.00	$ 678.00
   4/17/97	Medium Green Squash		77	$12.35	$ 950.95

   4/18/97	Yellow Crookneck Squash	40	$ 5.00	$ 200.00
   	Fancy Yellow Squash	110	$ 8.35	$ 918.50
   	Medium Yellow Squash	40	$ 6.35	$ 254.00
   	Fancy Zucchini	79	$12.35	$ 975.65
   	Medium Zucchini	40	$10.35	$ 414.00
   4/25/97	Yellow Crookneck Squash	40	$ 8.35	$ 334.00
   	Number 1
   	Yellow Crookneck Squash	120	$ 5.35	$ 642.00
   	Number 2
   	Fancy Zucchini	80	$ 6.35	$ 508.00
   	Medium Zucchini	50	$ 4.35	$ 217.50

   4/25/97 Fancy Zucchini 92 $ 6.35 $ 584.20 Total $9,176.80

   
   

   The above shipments are represented by invoice numbers 07987, 07991, 07772, 07773, 07785, 07896, and 07802, respectively.

5. Petitioner has billed Sanford for the amount of $9,176.80, which Sanford has failed to pay.

6. The cabbage, squash, and zucchini shipped to Sanford between April 1, 1997, and April 25, 1997, by Petitioner was of the quality purchased by Sanford and was in good condition when shipped.

   CONCLUSIONS OF LAW

   
   

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

8. The burden is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation vs. J.W.C. Company, 396 So. 2d 778

(1st DCA Fla. 1981). Therefore, Petitioner must prove by a preponderance of the evidence that: (a) Sanford purchased the agricultural products in dispute; (b) Petitioner shipped the quality and quantity of agricultural products purchased by Sanford and that the agricultural products were in good condition when shipped by Petitioner; and (c) Sanford has failed or refused to pay Petitioner for the agricultural products shipped to Sanford by Petitioner after being billed for them by Petitioner. Department of Banking and Finance, Division of Securities and

Investor Protection vs. Osborne Stern Company, et al.,

670 So. 2d 932 (Fla. 1996). Petitioner has met its burden of proof in that regard.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding that Sanford Produce Exchange, Incorporated, owes Fresh Pride Sales, Incorporated, the sum of $9,176.80.

DONE AND ENTERED this 14th day of January, 1998, in Tallahassee, Leon County, Florida.

_ WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1998.

COPIES FURNISHED:

Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture

and Consumer Services The Capitol, Plaza 10

Tallahassee, Florida 32399-0810

Richard Tritschler General Counsel Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32299-0810

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture

and Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0810

Troy Cobb

Qualified Representative

Fresh Pride Sales, Incorporated Post Office Box 577

Wauchula, Florida 33873

Anthony L. Thomas, President

Sanford Produce Exchange, Incorporated 6060 Hensel Road

Port Orange, Florida 32119

F. J. Manuel, Jr., Esquire Sears and Manuel, P.A.

511 North Ferncreek Avenue Orlando, Florida 32803

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-004205

Orders for Case No: 97-004205