STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SIX L's PACKING COMPANY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 80-1679A

) RAY GENE WILLIAMS d/b/a WILLIAMS ) PRODUCE COMPANY and HARTFORD ) ACCIDENT & INDEMNITY COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on May 11, 1981, in Fort Myers, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Mr. William Lipman 1/

Secretary-Treasurer

Six L's Packing Company, Inc. Post Office Box 1987 Hollywood, Florida 33022

For Respondent: No Appearance for Respondent.

PROCEDURAL BACKGROUND

These proceedings began on July 7, 1980 when Petitioner, Six L's Packing Company, Inc. (Six L's) filed a complaint with the Department of Agriculture and Consumer Services which alleged that the Respondent, Ray Gene Williams d/b/a Williams Produce Company, owed Petitioner $2,568.50 on the sale of watermelons. By an Answer dated August 19, 1980 Respondent Williams alleged that the watermelons did not meet the conditions of the sale and he did not owe any money for them. His Answer also requested an administrative hearing. On September 12, 1980 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. That hearing was first noticed for December 4, 1980, but was continued on the request of both parties. On February 4, 1980 the parties were requested by the Hearing Officer to submit a mutually agreeable date for the rescheduling of the final hearing. No answer to that correspondence was received. By a Notice dated March 18, 1981 the final hearing was rescheduled for and held on May 11, 1981.

At the final hearing Petitioner presented as his witness Mr. Charles Weisinger and offered Exhibits 1-6 into evidence. Exhibits 1-3, 5 and 6 were so received. Because Respondents did not appear at the hearing, no evidence on their behalf was received.

ISSUE PRESENTED

Did Respondent Williams fail to make an accounting for and payment to Petitioner for the proceeds of agricultural products purchased by Ray Gene Williams d/b/a Williams Produce Company?

FINDINGS OF FACT

1. Petitioner Six L's grows watermelons in Collier County, Florida. It is therefore a producer of agricultural products in the State of Florida.

   
   

2. Respondent Ray Gene Williams d/b/a Williams Produce Company is a dealer in agricultural products who engages in business in Florida.

   
   

3. Respondent Hartford Accident and Indemnity Company is the surety for a bond posted by Respondent Williams to insure compliance with Section 604.20, Florida Statutes (1979).

   
   

4. On May 26, 1980, Six L's sold 46,700 pounds of field run, crimson sweet, watermelons to Respondent Williams at a price of 5 1/2 cents per pound for a total cost of $2,568.50.

   
   

5. The sale was negotiated between Mr. Charles Weisinger, a salesman for Six L's, and Mr. Larry DiMaria. Mr. DiMaria at that time was a purchasing agent for Respondent Williams. They agreed that the sale would be F.O.B. at Immokalee, Florida. On May 26, 1980 a truck under contract to Respondent Williams was loaded with 46,700 pounds of crimson sweet field run watermelons from the farm of Petitioner Six L's. The weight was verified by the Immokalee State Farmer's Market at 6:59 p.m., May 26, 1980. At that time Mr. DiMaria inspected the watermelons and accepted them on behalf of Respondent Williams.

1. On the following day, May 27, 1980, Mr. DiMaria made payment for the watermelons by issuing check #465 drawn on the account of Williams Farms in the amount of $2,568.50, payable to Six L's Packing Company. Before Six L's could collect on the check, payment was stopped by Respondent Williams, and no payment for the watermelons has since been made by either Respondent.

   
   

2. The final hearing in this case was initially noticed for December 4, 1980. At the request of Respondent Williams and with the agreement of Six L's it was continued to a later date. The final hearing was rescheduled for May 11, 1981 in Fort Myers, Florida at 10:00 a.m. At that time neither Respondent made an appearance. In order to give them time to appear the hearing was recessed until 10:30 a.m. At that time it resumed and was concluded at 11:30 a.m. with still no appearance by either Respondent. To the knowledge of the undersigned no attempt was made by the Respondents to request a continuance or otherwise explain their failure to appear.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.57(1), 120.65 and 604.21(6), Florida Statutes.

   
   

4. Dealers in agricultural products engaging in business in Florida must be licensed by the Department of Agriculture and Consumer Services. As a condition of licensure they must post a bond. The bond requirement is

   established by Section 604.20, Florida Statutes (1979) which provides in pertinent part:

   
   

   1. Before any license shall be issued, the applicant therefor shall make and deliver to the department a surety bond in the amount of at least $1,000 or in such greater amount the department may

      determine, not exceeding the maximum amount of business done or estimated to be done

      in any month by the applicant, executed by a surety corporation authorized to

      transact business in the state. Such bond shall be upon a form prescribed or approved by the department and shall be conditioned to secure the faithful accounting for pay- ment to producers or their agents or re- presentatives of the proceeds of all agri- cultural products handled or purchased by such dealer. A new and separate bond shall be furnished annually for the renewal of

      a license.

      
      

5. Petitioner Six L' s complaint is brought pursuant to Section 604.21(1), Florida Statutes (1979) which provides in part:

   
   

   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 to the department, which complaint shall be a written statement of the facts con- stituting said complaint. Said complaint shall be filed within 9 months from the date of sale in instances involving

      direct sales or from the date on which the agricultural product was received by the dealer in agricultural products, as

      agent, to be sold for the producer.

      
      

6. The bond posted by Respondent Williams is provided "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." It has been proven here that Respondent Ray Gene Williams did not pay for the 46,700 pounds of field run, crimson sweet, watermelons purchased from Petitioner on May 26, 1980. No justification for that failure to pay has been proven here. It is therefore concluded that Respondent Williams owes Petitioner, $2,568.50.

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 finding Ray Gene Williams d/b/a Williams Produce Company indebted to Six L's Packing Company, Inc. in the amount of $2,568.50.

DONE and RECOMMENDED this 12th day of June, 1981, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981.

ENDNOTE

1/ Mr. Lipman, who is one of the "L's" in Six L's was determined to be a qualified representative for the company. Section 28-5.105, Florida Administrative Code.

COPIES FURNISHED:

Robert A. Chastain, Esquire General Counsel

Department of Agriculture and Consumer Services

Room 513, Mayo Building Tallahassee, Florida 32301

Ray Gene Williams Post Office Box 1311

Moultrie, Georgia 31768

Mr. William Lipman Secretary-Treasurer

Six L's Packing Company Post Office Box 1987 Hollywood, Florida 33022

Hartford Accident & Indemnity Company 2301 Parklake Drive

Suite 140

Atlanta, Georgia 30345

Earl Peterson

Bureau of License and Bond Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32301

Docket for Case No: 80-001679

Orders for Case No: 80-001679