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RICKY A. BRANCH, III vs WISHNATZKI, INC., D/B/A WISHNATZKI FARMS AND FIDELITY AND DEPOSIT COMPANY OF MARYLAND, AS SURETY, 09-000628 (2009)

Court: Division of Administrative Hearings, Florida Number: 09-000628 Visitors: 22
Petitioner: RICKY A. BRANCH, III
Respondent: WISHNATZKI, INC., D/B/A WISHNATZKI FARMS AND FIDELITY AND DEPOSIT COMPANY OF MARYLAND, AS SURETY
Judges: DANIEL MANRY
Agency: Department of Agriculture and Consumer Services
Locations: Tampa, Florida
Filed: Feb. 06, 2009
Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Tuesday, June 16, 2009.

Latest Update: Jul. 30, 2009
Certified Article Number 7ib0 3901 9848 2604 4beb SENDERS RECORD STATE OF FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES Ricky A. Branch, III, Petitioner, DOAH CASE NO. 09-0628 LB CASE NO.: 09-0059, vs FINAL ORDER AGENCY CLERK #A63014 Wishnatzki, Inc., d/b/a Wishnatzki Farms, sg And . 7 Fidelity and Deposit Company of Maryland, 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 October 21, 2008, the Petitioner, Ricky A. Branch, III, a producer of agricultural products as defined by Section 604.15(9), Florida Statutes, timely filed an administrative claim pursuant to Section 604.21, Florida Statutes, to collect $31,296.18 for eggplants they sold to Respondent, a licensed dealer in agricultural products. Respondent’s license for the time in question was supported by a surety bond required by Section 604.20, Florida Statutes, written by Fidelity and Deposit Company of Maryland in the amount of $100,000. On January 7, 2009, a Notice of Filing of ‘an Amended Claim was mailed to Respondent and Co-Respondent. On January 27, 2009, the Respondent filed an ANSWER OF RESPONDENT with attachments wherein they denied the claim as being valid, admitted no indebtedness 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 April 17, 2009. Attached to the NOTICE OF HEARING was an ORDER OF PRE-HEARING INSTRUCTIONS with instructions for the parties to follow prior to and at the hearing. On March 30, 2009, the Respondent filed a ' MOTION TO CONTINUE FINAL HEARING. The Administrative Law Judge (“Judge”) issued an ORDER GRANTING CONTINUANCE (“Order”) on April 3, 2009. In the Judge’s Order, he asked the parties to confer and advise him on the status of the matter among other things. An ORDER RE-SCHEDULING. HEARING was issued on April 16, 2009 and a new hearing date was set for June 9, 2009. Prior to the hearing, on June 5, 2009, the Respondent filed a RESPONDENT’S MOTION TO DISMISS claiming their efforts to contact the Claimant have been futile. Additionally, Respondent asserts that Claimant failed to comply with the ORDER GRANTING CONTINUANCE, the ORDER RE-SCHEDULING HEARING and the ORDER OF PRE-HEARING INSTRUCTIONS issued by DOAH. For the aforesaid reasons, the Respondent feels the Claimant’s claim should be denied and the claim dismissed with prejudice. On June 16, 2009, the Judge issued a RECOMMENDED ORDER OF DISMISSAL, a copy of which is attached hereto as EXHIBIT “A”, to which neither party filed written exceptions with this Department. . Upon the consideration of the foregoing and being otherwise fully advised in the premises, it is ORDERED: Based on the fact that the Claimant failed to appear at the final hearing with DOAH on June 9, 2009 and failed to meet his burden of proof in presenting evidence in support of his claim, the Department adopts the Judge’s RECOMMENDED ORDER OF DISMISSAL. The Department hereby dismisses the captioned claim and the file is closed without further action. Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Final Order pursuant to Section 120.68, Florida Statutes (2002) and Rule 9.110, Florida Rules of Appellate Procedure (2003). Review proceedings must be instituted by filing a petition or notice of appeal with the Agency Clerk, 5" Floor, Mayo Building, Tallahassee, FL 32399-0800. A copy of the petition for review or notice of appeal, accompanied by the filing fees prescribed by law must also be filed with the appropriate District Court of Appeal within thirty (30) days of the date this Final Ondet yas filed with the Agency Clerk. DONE AND ORDERED this77_ day of , 2009. ES H. BRONSON TERRY/L. RHODES Assi Commissioner of Agriculture Ke Filed with Agency Clerk this? _ day of , 2009. (pL Vb AM Agency Clerk COPIES FURNISHED TO: Judge Daniel Manry Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Certified Receipt No. 7160 3901 9848 2604 4626) Mr. Gary Wishnatzki, Registered Agent Wishnatzki, Inc., d/b/a Wishnatzki Farms 100 Stearn Avenue Plant City, FL 33566 (Certified Receipt No. 7160 3901 9848 2605 1259) Mr. Ricky A. Branch, IIT Post Office Box 42 Webster, FL 33597 (Certified Receipt No. 7160 3901 9848 2605 1266) Ms. Kathy Alves, Claims Specialist Fidelity & Deposit Company of Maryland Post Office Box 87 , Baltimore, MD 21203-0087 (Certified Receipt No. 7160 3901 9848 2605 1273) (Claim No. 6380046897) Thomas F. Munro, Esquire FOLEY & LARDNER LLP 100 North Tampa Street, Suite 2700 Tampa, FL 33602 (Certified Receipt No. 7160 3901 9848 2605 1280) . Mr. Bedford Wilder General Counsel Staff Mayo Building, M-11 Tallahassee, Florida 32399-0800 Ms. Stephenie Butscher and Mr. Mark Moritz, Field Representatives

Docket for Case No: 09-000628
Issue Date Proceedings
Jul. 30, 2009 Final Order filed.
Jun. 16, 2009 Recommended Order of Dismissal. CASE CLOSED.
Jun. 10, 2009 Respondent's Amended Exhibit List filed.
Jun. 09, 2009 CASE STATUS: Hearing Held.
Jun. 05, 2009 Respondent's Motion to Dismiss filed.
Jun. 02, 2009 Respondent's Witness and Exhibit List filed.
May 20, 2009 Respondent's Expert Witness List filed.
Apr. 21, 2009 Agency`s court reporter confirmation letter filed with the Judge.
Apr. 16, 2009 Order Re-scheduling Hearing (hearing set for June 9, 2009; 9:30 a.m.; Tampa, FL).
Apr. 14, 2009 Letter to Judge Manry from T. Munro regarding Petitioner`s non-response to Respondent`s attempts to reschedule final hearing filed.
Apr. 03, 2009 Order Granting Continuance (parties to advise status by April 13, 2009).
Mar. 30, 2009 Motion to Continue Final Hearing filed.
Mar. 02, 2009 Agency`s court reporter confirmation letter filed with the Judge.
Feb. 24, 2009 Order of Pre-hearing Instructions.
Feb. 24, 2009 Notice of Hearing (hearing set for April 17, 2009; 9:30 a.m.; Tampa, FL).
Feb. 13, 2009 (Respondent`s) Notice of Compliance with Initial Order filed.
Feb. 06, 2009 Initial Order.
Feb. 06, 2009 Amount of Amended Claim filed.
Feb. 06, 2009 Explanation for Answer of Respondent filed.
Feb. 06, 2009 Answer of Respondent filed.
Feb. 06, 2009 Agency referral filed.

Orders for Case No: 09-000628
Issue Date Document Summary
Jul. 29, 2009 Agency Final Order
Source:  Florida - Division of Administrative Hearings

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