STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

J. R. BROOKS & SON, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 85-0392A

) ALLIED FIDELITY INSURANCE CO., )

)

Respondent. )

)

RECOMMENDED ORDER APPEARANCES

For Petitioner: James H. Zaharako

Post Office Drawer 9 Homestead, Florida 33030

For Respondent: No Appearance

PROCEDURAL BACKGROUND

By a Request for Hearing dated January 22, 1985, Allied Fidelity Insurance Company by and through its attorney, requested a Section 120.57(1), Florida Statutes hearing to determine the indebtedness, if any, of Allied Fidelity Insurance Company as surety for Sunshine Produce Company, Inc. pursuant to Chapter 640, Florida Statutes. Allied Fidelity Insurance Co. is surety for Sunshine Produce Company, Inc. Sunshine Produce Company, Inc. has made no request for formal hearing pursuant to Section 120.57(1), Florida Statutes. The instant case was, however, erroneously styled J. R. Brooks & Son, Inc. v.

Sunshine Produce Company, Inc., et al., before the Division of Administrative Hearings, as Case No. 85-0392A, and is correctly restyled by this Recommended Order.

A formal hearing before the undersigned was noticed for April 12, 1985, and at that time a continuance was sought by Petitioner and an order granting same entered

accordingly on April 19, 1985. By this order, all parties were granted 20 days there from in which to advise the undersigned of the status of a possible pending bankruptcy action and of any federal bankruptcy court "stay" which might be applicable to the instant administrative proceeding. The undersigned caused this order to be served on the parties hereto and upon the Department of Agriculture, the principal Sunshine, and the Federal Bankruptcy Judge of the Southern District of Florida. This order constitutes a formal part of the record of this cause before the Division of Administrative Hearings and shall be transmitted to the agency with this Recommended Order. No advices or notice of stay was filed by any party or recipient of that order.

FORMAL HEARING

Formal hearing pursuant to Section 120.57(1) was rescheduled for June 7, 1985, and pursuant to notice this cause was heard at formal hearing before Ella Jane P. Davis, the duly assigned Hearing Officer of the Division of Administrative Hearings on June 7, 1985, in Miami, Florida.

At formal hearing, the undersigned inquired, and thereafter accepted, pursuant to Rule 22I-6.08, Florida Administrative Code, Mr. James Zaharako as a qualified representative of the Petitioner J. R. Brooks & Son, Inc.

Petitioner presented the testimony of James Zaharako and Mr. James H. Maynard, field representative and financial analyst of the Bureau of Licenses and Bond, Division of Marketing of the Department of Agriculture.

Their testimony was unrebutted. Petitioner also presented and had admitted in evidence the following exhibits: Hearing Officer's Exhibit 1, letter of attorney for Respondent Allied indicating there would be no attendance at hearing; Hearing Officer's Exhibit 2, Affidavit and Notice of Representation of Corporate Party by James Zaharako (two pages); Petitioner's Composite Exhibit 1, series of invoices; Petitioner's Exhibit 2, Letter received in course of business by Petitioner from Sunshine Produce's attorney; Petitioner's Composite Exhibit 3, complaint and attachments; after-filed Petitioner's Exhibits 4 and 5, a 9/13/84 letter and certified copy of bond of Allied Fidelity Insurance Co., filed with the Department of Agriculture, respectively. Respondent was not present and offered no testimony or exhibits.

The hearing was recorded by cassette tape; no transcript was provided to the undersigned. No proposed findings of fact and conclusions of law were filed by any party.

FINDINGS OF FACT

1. James Zaharako is the Executive Vice-President of

   J. R. Brooks & Sons, Inc. In this capacity he is involved in the management and administration of J. R. Brooks & Sons, Inc., including but not limited to collection of sums owed.

   
   

2. He or his subordinates agreed to fill orders for avocadoes from Sunshine Produce Company, Inc. totalling

$84,193.25 set out as follows:

These agricultural products were delivered into the care, custody and control of truck drivers employed by Sunshine Produce, Company, Inc. at the J. R. Brooks packing facility located in Homestead, Florida. The transaction, except for payment to J. R. Brooks, was complete at that time.

1. Despite many attempts to collect the total amount, representatives of Sunshine refused, declined, or failed to pay J. R. Brooks & Sons, Inc. the amount charged without offering any reason except that they did not have sufficient funds.

   
   

2. The surety, pursuant to bond FS-106353 for Sunshine Produce Company, Inc. is Allied Fidelity Insurance Company. The amount on this bond is capped at $4,000 for events arising between August 7, 1983, and August 6, 1984.

   Seventy-four thousand nine hundred and thirty-seven dollars ($74,937.00) of the total unpaid-for orders were filled by

   J. R. Brooks & Son to Sunshine Produce Company, Inc. in this period of time.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the surety, Allied Fidelity Insurance Company, and Petitioner J. R. Brooks & Son, Inc.

   
   

4. Chapter 604, Florida Statutes, provides for the licensing of bonded dealers in agricultural products of the state and the procedure whereby, following the completion of an administrative process which may include a hearing such as this, the Commissioner of Agriculture may issue a final order directing a dealer to pay the sums due.

   
   

5. In the usual situation, upon failure of the dealer to make such payment within 15 days, the surety on the bond may be called upon to pay the unpaid debt up to the limits on the bond.

   
   

6. The instant situation differs somewhat from the norm in that the dealer, Sunshine, did not dispute any issues of material fact nor did it request either a formal or informal hearing. Because of this, any questions in the undersigned's mind raised by uncorroborated hearsay that an automatic stay might preclude the Division of Administrative Hearings holding an evidentiary hearing to establish the liquidated amount owed by Sunshine to J. R. Brooks & Son, Inc. is moot. Sunshine has never been before the Division of Administrative Hearings. Concomitantly, since Sunshine is not before the Division of Administrative Hearings the undersigned may make no recommendation requiring Sunshine to pay.

   
   

7. Nonetheless, upon the foregoing findings of fact and pursuant to Section 604.21(9), Florida Statutes, which provides:

"Nothing in this Section may be construed as relieving the surety company from responsibility for payment on properly established complaints against dealers involved in a federal bankruptcy pro- ceeding and against whom the department

is prohibited from entering an order." It is,

RECOMMENDED:

That the Department of Agriculture enter a final order requiring Allied Fidelity Insurance Company to pay Petitioner the total amount guaranteed by its bond FS- 106353 ($4,000).

DONE and ORDERED this 18th day of July, 1985 in Tallahassee, Florida.

Hearings

Hearings

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative

this 18th day of July, 1985.

COPIES FURNISHED:

Robert A. Chastain General Counsel Florida Department of

Agriculture & Consumer Services

Mayo Building

Tallahassee, Florida 32301

J. R. Brooks & Son, Inc. Post Office Drawer 9 Homestead, Florida 33090

Sunshine Produce Company, Inc. 2186 Northwest 13 Avenue

Miami, Florida 33142

Allied Fidelity Insurance Company 8945 North Meridian Street Indianapolis, IN 46207

Joe Knight, Chief

Bureau of License and Bond Department of Agriculture

and Consumer Services

Mayo Building

Tallahassee, Florida 32301

Steven R. Gavin, Esquire Palmer, Howard, Nowak & Clark

315 Third Avenue North Jacksonville, Florida 32250

Thomas C. Britton Federal Bankruptcy Court

N.W. First Avenue Miami, Florida

Docket for Case No: 85-000392

Orders for Case No: 85-000392