STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

W. F. ANDREWS and DWIGHT THOMAS, )

)

Petitioners, )

)

vs. ) CASE NO. 87-2573A

)

R. A. HALL AND COMPANY and ) FIDELITY AND DEPOSIT COMPANY ) OF MARYLAND, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on August 27, 1987, in Tampa, Florida.

Petitioner W. F. Andrews appeared on his own behalf and on behalf of Petitioner Dwight Thomas, and Tommy C. Harrison appeared on behalf of Respondent

R. A. Hall and Company. Respondent Fidelity and Deposit Company of Maryland did not appear and was not represented.

Petitioners Andrews and Thomas filed a complaint with the Department of Agriculture and Consumer Services seeking payment from Respondents R. A. Hall and Company and/or Fidelity and Deposit Company of Maryland in the amount of

$6,781.20 for five loads of watermelons. Respondent Hall requested a formal hearing, and the matter was referred to the Division of Administrative Hearings for the conduct of that hearing.

W. F. Andrews testified on behalf of the Petitioners, and Tommy C. Harrison testified on behalf of the Respondents. No exhibits were offered as evidence.

FINDINGS OF FACT

1. R. A. Hall and Company (hereinafter "Hall") agreed to sell twenty loads of watermelons grown by Petitioners W. F. Andrews and Dwight Thomas, a partnership. Hall provided the harvesting and trucking and supervised the loading of the trucks.

   
   

2. No complaints were made by Hall regarding the watermelons during the loading, and no subsequent complaints were received by Petitioners.

   
   

3. After the season Petitioners received a check from Hall for all but five loads of the watermelons. Hall's notations accompanying the check indicated as to two loads that they were missing and that as to three more loads no payment was being made. No further explanation for Hall's failure to pay for the five loads was given to Petitioners.

4. During the final hearing Hall's Secretary-Treasurer Tommy C. Harrison admitted that Hall owed Petitioners $1,346.10 for one of the five loads of watermelons. No evidence was offered regarding Hall's failure to pay for the other four loads.

   
   

5. Hall is indebted to Petitioners in the sum of $6,781.20 for the five loads of watermelons.

   
   

6. Fidelity and Deposit Company of Maryland was Hall's surety at the time of this transaction.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Sections 120.57(1) and 604.21, Florida Statutes.

   
   

8. Petitioners have established their entitlement to payment for the five loads of watermelons in question. Hall has admitted its liability to Petitioners for one load and has failed to present any defense for its nonpayment as to the other four loads. Accordingly, Petitioners are entitled to the entry of an order directing payment pursuant to the provisions of Section 604.21(8), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order directing Respondent R. A. Hall and Company to pay Petitioners W.

F. Andrews and Dwight Thomas the sum of $6,781.20. It is further

RECOMMENDED that such Final Order provide that if Respondent R. A. Hall and Company fails to timely pay the Petitioners, then Respondent Fidelity and Deposit Company of Maryland shall pay the Department and the Department will thereafter reimburse the Petitioners in accordance with Section 604.21(8), Florida Statutes.

DONE and RECOMMENDED this 15th day of September, 1987, at Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1987.

COPIES FURNISHED:

Doyle Conner, Commissioner Department of Agriculture

and Consumer Services The Capitol

Tallahassee, Florida 32399-0810

W. F. Andrews Dwight Thomas Route 1 Box 227

Brooker, Florida 33622

Fidelity and Deposit Company of Maryland Post Office Box 1277

Baltimore, Maryland 21203

Clinton H. Coulter, Jr., Esquire Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32399-0800

Tommy C. Harrison

R. A. Hall & Company Post Office Box 536 Lakeland, Florida 33802

Ted Helms, Chief

Bureau of Licensing & Bond Department of Agriculture

and Consumer Services Lab Complex

Tallahassee, Florida 32399-1650

Docket for Case No: 87-002573

Orders for Case No: 87-002573