STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES W. WARD, JR., d/b/a ) WARD FARMS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7470A

) MADDOX BROTHERS PRODUCE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on January 22, 1991, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Charles W. Ward, Jr.

Star Route, Box 72 LaBelle, Florida 33440

For Respondent: Patricia Maddox Harrier

4253 Kingston Pike

Knoxville, Tennessee 37919 STATEMENT OF THE ISSUES

The issue is whether respondent is liable for payment of $64,511.71 to petitioner as alleged in petitioner's complaint.

PRELIMINARY STATEMENT

This matter began on August 23, 1990, when petitioner, Charles W. Ward, Jr., d/b/a Ward Farms, filed a complaint with the Department of Agriculture and Consumer Services (Department) alleging that respondent, Maddox Brothers Produce, Inc., a licensed agriculture dealer, owed petitioner $64,511.71 for watermelons brokered by respondent on behalf of petitioner in April and May 1990.

Respondent filed an answer to the complaint in which it acknowledged that it owed petitioner $53,980.92 but disputed the remaining amount. Thereafter, the Department referred the matter to the Division of Administrative Hearings on December 14, 1990, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated December 31, 1990, a final hearing was scheduled on January 22, 1991, in Fort Myers, Florida.

At final hearing the parties stipulated to all pertinent facts and agreed to the admission of hearing officer exhibits 1 and 2. Those exhibits are the complaint and answer, respectively, and the attachments to each of those pleadings.

There is no transcript of hearing and, in view of the stipulation, it was unnecessary for the parties to submit proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Based upon all of the evidence, including the stipulation of the parties, the following findings of fact are determined:

1. Petitioner, Charles W. Ward, Jr., is a co-owner, with other members of his family, of a cattle ranch in south Hendry County known as Ward Farms. Respondent, Maddox Brothers Produce, Inc., is a licensed agriculture dealer engaged in the business of brokering agriculture products in the State of Florida. As an agriculture dealer, respondent is subject to the regulatory jurisdiction of the Department of Agriculture and Consumer Services (Department). One such requirement of the Department is that all dealers post a surety bond with the Department's Division of Licensing and Bond. To this end, respondent has posted a $50,000 surety bond with Fireman's Fund Insurance Company as the surety.

   
   

2. In addition to raising livestock, petitioner also grows watermelons on his property. Pursuant to an agreement by the parties, between April 16 and May 15, 1990, respondent harvested and then transported petitioner's watermelons to other destinations outside the state. The parties have stipulated that respondent still owes petitioner $53,980.92 as payment for the watermelons.

   
   

3. Respondent has agreed to pay petitioner the above sum of money on or before February 15, 1991, or within fifteen days after the agency's order becomes final, whichever is later. Otherwise, payment shall be made from respondent's bond posted by the surety, Fireman's Fund Insurance Company.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

   
   

5. By agreeing to allow the Division of administrative Hearings to resolve the price dispute, the parties have implicitly presumed the existence of a valid oral contract. J.R. Sales, Inc. v. Earl Dicks, 521 So.2d 366 (Fla. 1st DCA 1988).

   
   

6. By virtue of the stipulation of the parties, petitioner has sustained the allegation in his complaint that respondent is indebted to petitioner in the amount of $53,980.92 for brokering petitioner's watermelons in April and May 1990. In addition, respondent has agreed that it will pay such amount on or before February 15, 1991, or within fifteen days after the date the Department's final order becomes effective, whichever is later. Otherwise, the terms of Subsection 604.1(8), Florida Statutes (1989) come into play, and the Department bay call upon the surety company to pay all or such portion of the debt as the bond may cover.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent, a

licensed agriculture dealer, is indebted to petitioner in the amount of

$53,980.92, and that such debt be satisfied in accordance with the time limitations set forth in this recommended order. Otherwise, Fireman's Fund Insurance Company shall be obligated to pay over to the Department the full amount of the bond, or $50,000.

DONE and ENTERED this 24th day of January, 1991, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1991.

COPIES FURNISHED:

Charles W. Ward, Jr. Star Route, Box 72 LaBelle, Florida 33440

Patricia Maddox Harper 4253 Kingston Pike

Knoxville, Tennessee 37919

Barbara J. Kennedy, Esquire Fireman's Fund Insurance Company Post Office Box 193136

San Francisco, California 94119-3136

Bob Crawford

Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-0810

Richard D. Tritschler, Esquire General Counsel

Department of Agriculture

515 Mayo Building

Tallahassee, Florida 32399-0800

Brenda D. Hyatt, Chief Bureau of Licensing & Bond

508 Mayo Building

Tallahassee, Florida 32399-0800

Docket for Case No: 90-007470

Orders for Case No: 90-007470