STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREAT AMERICAN FARMS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 91-7099A

)

) B & M PRODUCE, INC., and LAWYERS ) SURETY CORPORATION, )

)

Respondents. )

)

SUMMARY RECOMMENDED ORDER

This proceeding began when Great American Farms, Inc. (Great American), filed a verified complaint against B & M Produce, Inc. (B & M), and Lawyers Surety Corporation (Surety) on February 27, 1992, alleging B & M owed it $7,456 because B & M had failed to pay for two lots of select cucumbers delivered on December 11 and 12, 1990. B & M and Surety failed to answer the complaint in a timely fashion after the Department of Agriculture served in on them; a late answer was filed. The Department disregarded the late answer, and entered an order on October 23, 1991, finding B & M liable to Great American in the full amount claimed, but gave B & M and its Surety 14 days in which to request a hearing on the findings made in that order. A hearing was requested and the matter was forwarded to the Division of Administrative Hearings. B & M then filed for bankruptcy protection, and this proceeding was abated while permission was sought from the bankruptcy court to continue it. Permission was granted, and the case was set for hearing on June 8, 1992.

Great American filed a Motion For Entry Of A Recommended Final Default Order on June 1, 1992, to which are attached waivers of the right to the hearing set for June 8, 1992, signed by both B & M and its Surety.

In view of the waivers, no hearing is necessary, and the allegations of the verified complaint filed by Great American should be taken as true.

It is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumers Services requiring B & M and its Surety to pay to Great American the sum of $7,456.00.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 34d day of June 1992.

COPIES FURNISHED:

Mr. Paul Guardalabene Lawyers Surety Corporation Post Box 1365

Milwaukee, Wisconsin 53201

WILLIAM R. DORSEY, JR.

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 3rd day of June 1992.

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

Consumer Services

513 Mayo Building

Tallahassee, Florida 32399-0800

Alan J. Levy

Great American Farms, Inc. 1287 West Atlantic Boulevard Pompano Beach, Florida 33069

Charles J. Max, Jr., President B & M Produce, Inc.

4417 N.E. Ocean Boulevard Jensen Beach, Florida 33457

James A. Conway, Esquire Post Office Box 1557 Stuart, Florida 34995-1557

The Honorable Bob Crawford Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-0810

Richard Tritschler General Counsel

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

GREAT AMERICAN FARMS, INC., PETITIONER,

vs DOAH CASE NO. 91-7099A

LB CASE NO. 92-0029

B & M PRODUCE, INC., AND LAWYERS SURETY CORPORATION,

RESPONDENTS.

/

FINAL ORDER

THIS CAUSE, arising under Florida's "Agricultural License and Bond Law" (Sections 604.15 - 604.34, Florida Statutes), came before the Commissioner of Agriculture of the State of Florida for consideration and final agency action. On March 11, 1991, the Petitioner, Great American Farms, Inc., an agent for Florida producers of agricultural products as defined by Section 604. 15 (3), Florida Statutes, timely filed an administrative complaint pursuant to Section 604.21, Florida Statutes, to collect $7,456 for cucumbers it sold to Respondent, a licensed dealer in agricultural products. Respondent's license for the time in question was supported by a bond required by Section 604.20, Florida Statutes, written by Lawyers Surety Corporation in the amount of $40,000. The Respondent's answer denied owing Petitioner, but the answer was not timely filed and therefore could not be considered in evidence. On October 22, 1991, the Florida Department of Agriculture and Consumer Services (the "Department") entered an Order therein the Respondent was ordered to pay Petitioner $7,456.

Pursuant to Chapter 120, Florida Statutes, the Respondent filed a timely request for an administrative hearing. Subsequent to the request for an administrative hearing, the Department was advised that the Respondent was involved in a Chapter 7 bankruptcy proceeding. The Department filed a MOTION FOR RELIEF FROM STAY with the United States Bankruptcy Court to lift the automatic stay of Title

11 U.S.C. Section 362, in order to proceed to adjudicate complaints against the

Respondent. The Florida Division of Administrative Hearings (DOAH) Issued an Order Continuing Hearing To Permit Petitioner To Seek Relief In Bankruptcy Court And Requiring Report in this matter. On April 9, 1992, the Judge for the United States Bankruptcy Court issued an Order Granting Florida Department Of Agriculture's Motion For Relief From Stay in which the attorney far the Debtor and attorney for the Trustee consented to the Order. With the stay lifted, DOAH scheduled and notified all parties that a telephone hearing would be held on June 8, 1992. After the notice of Telephone Hearing was issued, the Counsel for Respondent, B & M Produce, Inc., and the Counsel for Co-Respondent, Lawyers Surety Corporation, each executed a Waiver Of Right To Administrative Hearing, in which they waived their rights to an administrative hearing in this cause.

Based on the Respondent's and Co- Respondent's waiver of their rights to an administrative hearing, the Attorney's for Petitioner/Complainant filed with DOAH a Motion For Entry Of A Recommended Final DeFault Order. On June 3, 1992, the Hearing Officer rendered his Summary Recommended Order, a copy of which is attached hereto as Exhibit, to which neither party filed written exceptions.

Upon the consideration of the foregoing and being otherwise fully advised in the premises, it is

1. The Hearing Officer's Summary Recommended Order is adopted in toto as this agency's recommendation, EXCEPT, where it is stated that the Petitioner filed a verified complaint against Respondent on February 27, 1992. The original complaint was filed with the Department on March 11, 1991.

   
   

2. The Hearing Officer's recommendation is hereby modified to acknowledge that the Respondent is involved in a bankruptcy proceeding. Because of this, their inability to pay the undisputed amount is recognized. Consequently, Lawyers Surety Corporation, as Surety, Co- Respondent is Ordered to pay to BOB CRAWFORD, Commissioner of Agriculture, for the use and benefit of Petitioner, Great American Farms, Inc., the sum of $7,456 within fifteen (15) days after this Order becomes final. This Order is final and effective on the date filed with the Clerk of the Department.

Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Order pursuant to Section 120. 68., Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the Agency Clerk, 5th Floor, Mayo Building, Tallahassee, FL 32399-0800, and a copy of sand with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.

DONE AND ORDERED this 26th day of June , 1992.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

ANN H. WAINWRIGHT

Assistant Commissioner of Agriculture FILED with Agency Clerk, this 29th day of June , 1992.

(SIGNED) Judith A. Maloy Agency Clerk

Copies furnished:

Mr. Robert C. Purr, Esquire Purr and Cohen, P.A.

1499 West Palmetto Park Road Boca Raton, FL 33486

Mr. R. A. Dehle, Esquire Lawyers Surety Corporation 1025 South Semoran, Suite 1085 Winter Park, FL 32792

Mr. Alan J. Levy

Great American Farms, Inc. 1287 W. Atlantic Boulevard Pompano Beach, FL 33069

Mr. Charles J. Max, Jr., President B & M Produce, Inc.

4417 N.E. Ocean Boulevard Jensen Beach, FL 33457

Mr. James A. Conway, Esquire

P.O. Box 1557

Stuart, FL 34995-1557

Mr. Paul Guardalabenee Lawyers Surety Corporation

P.O. Box 1365 Milwaukee, WI 53201

Mr. William R. Dorsey, Jr. Hearing Office

Division of Administrative Hearings

The DeSoto Bldg., 1230 Apalachee Parkway Tallahassee, FL 32399-1550

Docket for Case No: 91-007099

Orders for Case No: 91-007099