STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETE CAPPARELLI & ROBIN L. STONE ) d/b/a CAPPARELLI FARMS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 79-491A

) ORLOWSKI PRODUCE CO., INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, in Palatka, Florida, at 10:00 a.m., May 1, 1979.

APPEARANCES

Robin L. Stone of Route 1, Box 247, Elkton, Florida, appeared for the Petitioners. Robert A. Chastain, Esquire, who is the General Counsel of the State of Florida, Department of Agriculture and Consumer Services, Mayo Building, Tallahassee, Florida 32301, appeared on behalf of that Department. Although the Respondent had received proper notice of this hearing, it did not appear. (An explanation of the non-appearance is discussed in the Order of the undersigned dated April 30, 1979, which Order denied the Respondent's request for a continuance of the May 1, 1979, hearing date in the case at issue.)

ISSUE

Whether the Petitioners, Pete Capparelli and Robin L. Stone, d/b/a Capparelli Farms, Inc., are entitled to the payment of $15,710.02 as proceeds due the Petitioners for loads of potatoes delivered to the Respondent, Orlowski Produce Co., Inc.

FINDINGS OF FACT

1. The Respondent, Orlowski Produce Co., Inc., was licensed as a dealer in agricultural products for the period April 20, 1973, to September 24, 1978, which license was issued by the State of Florida, Department of Agriculture and Consumer Services. In connection with its activity in the State of Florida, the Respondent was required to make a surety bond in the amount of $20,000.00 as security for its business transactions with Florida agricultural producers, their agents or representatives for those agricultural products bought from or handled or sold for the Florida agricultural producers, their agents or representatives. The licensure provisions and requirement for bond are set out in the Sections 604.15 through 604.30, Florida Statutes. A copy of the license and bond may be found in the State of Florida, Department of Agriculture and Consumer Services Composite Exhibit No. 1 admitted into evidence. All exhibits of that Department will henceforth be referred to as "Department Exhibits."

2. The Petitioners, Pete Capparelli and Robin L. Stone, d/b/a Capparelli Farms, Inc., producers of agricultural products in the State of Florida, filed a complaint with the State of Florida, Department of Agriculture and Consumer Services, alleging that the Respondent failed to pay moneys due and owing to the Petitioners for loads of potatoes. This complaint was filed on November 8, 1978, and may be found as Department's Exhibit No. 2 admitted into evidence. Following the filing of the complaint and in keeping with Section 604.21, Florida Statutes, the Department informed the Respondent that a complaint had been filed by forwarding the notice and complaint by certified mail with a return receipt requested. A copy of the notice of filing a complaint and return receipt may be found as Department's Composite Exhibit No. 3 admitted into evidence. The Respondent did not reply to the complaint, notwithstanding the fact that one of its officials had signed the return receipt request, indicating that it had received the complaint and explanation.

   
   

3. In view of the fact that the Respondent had failed to reply to the complaint within the twenty-five days allowed to answer the complaint, and had failed to request a hearing within that twenty-five day period, the Commissioner of Agriculture, State of Florida, Department of Agriculture and Consumer Services, entered an order in favor of the Petitioners. A copy of this order was served on the Respondent by certified mail with a return receipt requested. The Respondent received that order. The order itself may be found as the Department's Exhibit No. 4 admitted into evidence.

   
   

4. In the order, the Commissioner of Agriculture makes the following findings of fact:

   
   

   1. Complainant, Pete Capparelli and Robin L. Stone, is a partnership doing business as Capparelli Farms whose address is Route 1, Box 247, Elkton, Florida.

   2. Respondent, Orlowski Produce Company, is a corporation whose address is Post Office Box 128, Water Mill, New York. At the time of the transactions involved, respondent was licensed as a dealer in agricultural products supported by a $20,000 surety bond.

   3. Between May 19, 1978 and June 14, 1978, the respondent, acting an an agent for the complainant, handled potatoes produced by the complainant.

   4. The complainant initially sent the respondent a statement showing $17,149.83 as the net proceeds due from the potatoes mentioned in Fact 3 after allowing for the 25 cents per hundredweight selling charge.

   5. Subsequent to the filing of the complaint, the complainant visited Mr. Bobby Carpenter of respondent firm who altered and initialed a copy of complainant's statement of June 15,

      1978 to show an amount of $15,710.02.

   6. A copy of the altered statement shown in Fact 5 is attached to this Order.

   7. The complaint was received in this office within nine (9) months from the date of the last transaction.

   8. There are no known disputed facts in this matter.

      
      

      The Commissioner of Agriculture also concluded as a matter of law that the Respondent was justly indebted to the Petitioners in the amount of $15,710.02 and for that reason had violated the conditions and provisions of the bond, within the meaning of Subsection 604.21(1), Florida Statutes. After establishing the apparatus for default judgment, the Commissioner of Agriculture afforded the Respondent and others with a material interest in the outcome of the case, one final opportunity to request a hearing before the Commissioner of Agriculture's conclusions of law became binding. The Respondent, in the person of one of its officers, Robert Carpenter, made such a request for a hearing, but having made such a request, elected not to attend the hearing, for reasons that are more completely detailed through the pleadings filed in this cause.

      
      

5. On the date and time scheduled for hearing, alluded to in the introductory statement of this Order, a de novo hearing was conducted. Testimony was offered and that testimony substantiated the findings of fact of the Commissioner of Agriculture in his order of January 26, 1979, except paragraph eight (8). Therefore, those findings of fact reported herein, excepting paragraph eight (8), are adopted as the findings of fact of this Hearing Officer.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this action.

   
   

7. Based upon a full consideration of the facts herein, it is concluded as a matter of law that the Respondent owes the Petitioners an amount of $15,710.02 for loads of potatoes which the Petitioners delivered to the Respondent and it is further concluded that the Petitioners are entitled to share in the bond proceeds of the bond which is filed with the State of Florida, Department of Agriculture and Consumer Services. See Sections 604.15, through 604.30, Florida Statutes.

RECOMMENDATION

It is recommended that the State of Florida, Department of Agriculture and Consumer Services, uphold the claim of the Petitioners, Pete Capperelli and Robin L. Stone, d/b/a Capparelli Farms, Inc., against 0rlowski Produce Co., Inc., in the amount of $15,710.02 and allow the Petitioners to share in the bond proceeds which the Respondent, Orlowski Produce Co., Inc., has on file with the State of Florida, Department of Agriculture and Consumer Services.

DONE AND ENTERED this 17th day of May, 1979, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings Room 101 Collins Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Pete Capparelli and Robin L. Stone d/b/a Capparelli Farms, Inc.

Route 1, Box 247

Elkton, Florida 32022

Leonard Hanser, Esquire 1509 North Military Trail

West Palm Beach, Florida 33409

Robert A. Chastain, Esquire Department of Agriculture and

Consumer Services Mayo Building

Tallahassee, Florida 32301

Docket for Case No: 79-000491

Orders for Case No: 79-000491