STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES FENNELL, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3164A

) MO-BO ENTERPRISES, INC. and ) LAWYERS SURETY CORPORATION, )

)

Respondents. )

)

RECOMMENDED ORDER

On August 8, 1994, a formal hearing was held in this case. See Section 120.57(1), Florida Statutes. The hearing location was the Suwannee County Courthouse, Live Oak, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Donald K. Rudser, Esquire

Post Office Drawer 1011

104 Central Avenue

Jasper, Florida 32052-0948

For Respondent: Lori Uhl

Mo-Bo Enterprises, (Personal Representative)

Inc. 2700 West Atlantic Boulevard, Suite 200 Pompano Beach, Florida 33069

For Respondent: No Appearance Lawyers Surety

Corporation

STATEMENT OF THE ISSUES

In this case, Petitioner (Fennell) seeks to recover money from Respondent, Mo-Bo Enterprises, Inc. (Mo-Bo), for small, super select and select cucumbers, which Fennell delivered in September 1993 to Mo-Bo, a Florida dealer in agricultural products, for sale F.O.B.

PRELIMINARY STATEMENT

Fennell filed a complaint and an amended complaint with the Florida Department of Agriculture seeking additional payment for cucumbers which he delivered to Mo-Bo for sale F.O.B. Mo-Bo answered in opposition to the claim. The case was referred to the Division of Administrative Hearings for conduct of a formal hearing. The hearing was conducted on the aforementioned date.

At hearing, Fennell testified and presented the witness, Harold Law. Fennell's exhibits 1-4, 1A-4A and 6 were admitted as evidence. Fennell's

exhibit 5 was denied admission as evidence. Mo-Bo presented the witnesses, Mike Salazar and Lori Uhl. Mo-Bo's exhibits 1-18 were admitted as evidence.

By correspondence dated August 13, 1994, Fennell relieved Donald K. Rudser, Esquire of the responsibility to further represent Fennell, to include the preparation of a proposed recommended order. On August 17, 1994, attorney Rudser wrote to acknowledge his client's decision to relieve counsel of further responsibility in the representation. Upon consideration of this information, attorney Rudser is found to have withdrawn from the case and was relieved of the responsibility to represent Fennell effective August 13, 1994.

The parties were afforded 10 days from the date the hearing was conducted to prepare and file proposed recommended orders with the Hearing Officer. No proposed recommended orders have been filed. The August 20, 1994 letter in argument by Fennell has been reviewed.

FINDINGS OF FACT

1. In late September 1993, Fennell harvested cucumbers that he had grown in Florida. He arranged for their sale through Mo-Bo, a Florida dealer in agricultural products.

   
   

2. The business deal between Fennell and Mo-Bo called for Fennell to deliver super select, select and small cucumbers only.

   
   

3. Under the agreement between Fennell and Mo-Bo, Fennell transported the cucumbers to the Mo-Bo packing house at Santa Fe, Florida, where Mo-Bo graded them for shipment to buyers.

   
   

4. As per the agreement between these parties, payment for the cucumbers was to be made by Mo-Bo customers F.O.B.

   
   

5. In keeping with their agreement, Fennell was to receive the balance of the F.O.B. price, minus Mo-Bo charges of 50 cents per bushel as the selling fee, and $3.00 per bushel as the packing fee, together with any cash advances made from Mo-Bo to Fennell.

   
   

6. Consistent with the agreement, Mo-Bo collected $3.50 per bushel for selling and packing the Fennell cucumbers with the exception of certain shipments which will be described. Mo-Bo advanced Fennell $400.00 on September 27, 1993 by check no. 00654 and accounted for that advance on October 13, 1993.

   
   

7. Mo-Bo debited Fennell $400.00 on November 3, 1993 and an additional

   $400.00 on November 8, 1993 for claimed cash advances under the same check number and date which related to the original $400.00 cash advance. Fennell did not receive the additional $800.00 as cash advances. In effect, Mo-Bo reported the single $400.00 cash advance three different times.

   
   

8. As reflected on Mo-Bo's invoice number 28558, Mo-Bo charged Fennell freight costs of $2.10 per bushel for 278 bushels of super select cucumbers which Fennell delivered to Mo-Bo for sale. This charge was not authorized by the agreement between Fennell and Mo-Bo. The unauthorized charge totalled

   $583.80.

   
   

9. As reflected in the Mo-Bo September 23, 1993 statement of receipt and disposition in the Fennell account and supported by Mo-Bo invoice number 28541,

   $450.00 (for 225 bushels) was paid F.O.B. for Fennell's super select cucumbers

   and Fennell was credited with $675.00 as the amount owed to Fennell. For that transaction, Mo-Bo lost $225.00.

   
   

10. In that same September 23, 1993 statement of receipt and disposition, Mo-Bo credited Fennell with an additional $672.00 (for 224 bushels) for super select cucumbers which Fennell delivered to Mo-Bo for sale. Mo-Bo claims that it lost $672.00 because it received no payment for those 224 bushels of super select cucumbers. Unlike the transaction in the preceding paragraph, Mo-Bo did not support this claim by providing the underlying invoice number 28543 to show the claimed $672.00 loss.

    
    

11. On the other hand, Fennell has not proven that $672.00 is not an appropriate amount to assign as credit for the sale of that quantity of super select cucumbers.

    
    

12. On September 23, 1993, in addition to the super select cucumbers, the account reports receipt and disposition of select and small cucumbers. Accepting that $450.00 was the true value F.O.B. of the 225 bushels and $672.00 for the 224 bushels of super select cucumbers, Mo-Bo lost another $108.50 from its $3.50 overall charges per bushel for selling and packing in the September 23, 1993 transaction in addition to the $225.00 it lost as a credit to Fennell described in Paragraph nine (9).

    
    

13. Otherwise, Fennell and Mo-Bo have performed their responsibilities under the terms of their agreement related to the cucumbers harvested, packed, delivered and sold F.O.B. in September 1993.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

15. Fennell has made a claim for additional payment for the cucumbers which he delivered to Mo-Bo for sale F.O.B. See Section 604.21, Florida Statutes. Fennell has the burden to prove his entitlement to additional money from the transactions. See Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

16. Mo-Bo owes Fennell $800.00 for advances debited to the Fennell account but not paid to Fennell. Mo-Bo owes $583.80 for unauthorized freight costs debited to the Fennell account. These amounts are offset by $225.00 which Mo-Bo credited Fennell over and above what Mo-Bo received in F.O.B. payments for the

225 bushels of super select cucumbers and $108.50 in authorized additional charges for selling and packing the loads in the September 23, 1993 transaction. On balance, Mo-Bo owes Fennell $1,050.30.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a Final Order be entered awarding Petitioner, James Fennell, the amount of $1,050.30 in additional payment to be paid by Respondent(s), Mo-Bo Enterprises, Inc. and/or Lawyers Surety Corporation.

DONE AND ENTERED this 31st day of August, 1994, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 31st day of August, 1994.

COPIES FURNISHED:

Donald K. Rudser, Esquire Post Office Drawer 1011

104 Central Avenue Jasper, FL 32052-0948

Lori Uhl Suite 200

2700 West Atlantic Boulevard Pompano Beach, FL 33069

James Fennell

Post Office Box 154 McAlpin, FL 32062

Mo-Bo Enterprises, Inc. Post Office Box 1899 Pompano Beach, FL 33061

Lawyers Surety Corporation Suite 1085

1025 S. Semoran

Winter Park, FL 32792

G. W. Croft

1815 West Howard Street Live Oak, FL 32060

Brenda Hyatt, Chief Department of Agriculture Bureau of Licensure and Bond

508 Mayo Building Tallahassee, FL 32399-0800

Richard Tritschler, General Counsel Department of Agriculture

The Capitol, PL-10 Tallahassee, FL 32399-0810

Bob Crawford, Commissioner Department of Agriculturec The Capitol, PL-10 Tallahassee, FL 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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.

================================================================= AGENCY FINAL ORDER

=================================================================

BEFORE THE COMMISSIONER OF AGRICULTURE STATE OF FLORIDA

ORRIN H. COPE PRODUCE, INC.,

Petitioner,

vs. CASE NO. 94-3164A

MO-BO ENTERPRISES, INC., GENERAL ACCIDENT AND INSURANCE COMPANY OF AMERICA,

Respondent.

/

FINAL ORDER

Procedural Background:

THIS CAUSE, arising under Sections 604.15 through 604.30, Florida Statutes, came before the Commissioner of Agriculture of the State of Florida for consideration and final agency action. The Petitioner, Orrin H. Cope Produce, Inc. ("Cope"), filed a Complaint with the Department of Agriculture and Consumer Services ("the Department"), Division of Marketing ("the Division"), alleging that the Respondent, Mo-Bo Enterprises, Inc., ("Mo-Bo"), an agricultural products dealer, licensed by the Department for the 1993-1994 growing season, was indebted to the Petitioner for $23,834.05 for tomatoes sold by Cope to Mo-Bo in December, 1993, and January, 1994. Mo-Bo's license for the subject period of time is supported by a bond written by General Accident and Insurance Company of America ("General Accident"), which was also named as a Respondent in the Complaint.

Respondent Mo-Bo filed a timely answer denying the allegation of indebtedness, and the file was referred to a Hearing Officer pursuant to Sec. 120.57(1), F.S., because factual allegations were at issue.

Attached to the Complaint were five invoices sent by the Petitioner to Mo- Bo in December, 1993, and January, 1994. At the commencement of the hearing, Petitioner advised that the parties had resolved their dispute over two of the invoices attached to the Complaint and only Invoice #26888 dated December 28,1993 ("Invoice #1"), Invoice #27163 dated January 7, 1994 ("Invoice #2"), and

Invoice #27308 dated January 12, 1994 ("Invoice #3"), totaling $18,819.80, remained at issue. Respondent General Accident did not appear at the hearing.

After the hearing on August 30,1994, and a review of the evidence, the Hearing Officer Stephen Benton found the Respondent Mo-Bo indebted to the Petitioner for the amount of $18,819.80 plus interest. The Hearing Officer's Recommended Order was rendered on November 30, 1994, a copy of which is attached hereto as Exhibit "A". On or about December 1, 1994, Mario D. German, Esquire, appeared as counsel for the Respondent, and on or about December 21, 1994, filed Exceptions to Recommended Order ("Exceptions"). Petitioner filed a Response to Exceptions to Recommended Order ("Response") on January 3, 1995. Respondent General Accident did not file exceptions.

Standard of Review:

Section 120.57(1)(b) 10., Florida Statutes, establishes the standard for review of a Recommended Order. It reads:

The agency may adopt the recommended order

as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order. The agency may not reject or modify the findings of fact, including findings of fact that form the basis for an agency statement, unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.

The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action. . . (Emphasis added.)

It is well established that a Hearing Officer's findings of fact may not be discarded by the reviewing agency unless they are "not based on competent substantial evidence." Section 120.57(1)(b)10.; Venetian Shores Home & Prop.

Own. v. Ruzakawski, 336 So.2d 399 (Fla. 3d DCA 1976).

When an agency does substitute its own findings, a reviewing court will naturally accord greater probative force to the hearing officer's contrary findings when the question is simply the weight or credibility of testimony by witnesses, or when the factual issues are otherwise susceptible of ordinary methods of proof, or when concerning those facts the agency may not rightfully claim special insight.... [but] where the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility, a reviewing court will give correspondingly less weight to the hearing officer's findings in determining the substantiality of evidence supporting the agency's substituted findings. McDonald v.

Department of Banking and Finance,

346 So.2d 569, 579 (Fla, 1st DCA 1977).

It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence. If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue

one way or the other. The agency may not reject the hearing officer's finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1282 (Fla. 1st

DCA 1985).

A Hearing Officer's recommended conclusions of law and interpretation of administrative rules may be rejected or modified by an agency. Section 120.57(1)(b)10., Florida Statutes. The competent evidence upon which to base a finding of fact "need not be enough to support the finding but there must be some competent evidence supporting or corroborating the incompetent evidence upon which a finding is bottomed. It is the evidence, not the competent evidence, that must be substantial." Florida Administrative Practice, Second Ed., The Florida Bar, Continuing Legal Education, Section 2.44 (citing Schwartz, Administrative Law, 340 (1981) and De Groot v. Sheffield, 95 So.2d 912 (Fla 1957))(emphasis added). A finding of fact cannot be based upon hearsay alone, unless that hearsay would be admissible over objection in a civil action, but hearsay can be used to supplement or explain other evidence. Section 120.58(1)(a), Florida Statutes; Florida Min. & Materials Corp. v. Florida Unemployment Appeals Commission, 530 So.2d 426 (Fla. 1st DCA 1988); Spicer v.

Metro Dade County, 458 So.2d 792 (Fla. 3rd DCA 1984). An agency cannot substitute its view for that of the hearing officer if the recommended order and the findings thereunder are supported by substantial competent evidence. School Bd. of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981); AFL-CIO Local 1010 v. Anderson, 401 So.2d 824 (Fla. 5th DCA 1981).

Also, Section 120.57(1)(b)6., Florida Statutes, states that the record in formal proceedings shall constitute:

1. All notices, pleadings, motions, and intermediate rulings;

2. Evidence received or considered;

3. A statement of matters officially recognized;

4. Questions and proffers of proof and objections and rulings thereon;

5. Proposed findings and exceptions;

6. Any decision, opinion, proposed or recommended order, or report by the officer presiding at the hearing;

7. All staff memoranda or data submitted to the hearing officer during the hearing or prior to its disposition, after notice

   of the submission to all parties, except communications by advisory staff as permitted under s. 120.66(1), if such communications are public records;

8. All matters placed on the record after an ex parte communication pursuant to s. 120.66(2); and

9. The official transcript.

No evidence which has been submitted after the entry of the Recommended Order is considered by the Department. See Florida Administrative Practice Manual, Vol. 2, Ch. 12, p.30 (Apr. 1994 Rev.).

Consideration of Respondent's Exceptions:

The Respondent's first exception contends that because the formal hearing was not properly conducted, justice requires that the Department reject the recommendations of the Hearing Officer.

The heart of this contention lies in the fact that the transcript record reflects that there was a question as to whether Ms. Uhl was qualified to represent Mo-Bo. Tr. at 6. According to the Petitioner, Mo-Bo is a corporation, and as such, is not permitted to represent itself in court. The Petitioner cites Magnolias Nursing and Convalescent Center v. Dept. of Health and Rehabilitative Services, 428 So.2d 256, 257 (1st DCA 1982), rev. den., 449 So.2d 265 (1984) in support of his position. However, as noted later in that same case, "[i]t is clear that self representation by corporations is permissible in administrative proceedings." Id.

The Respondent also states that Ms. Uhl was not a qualified representative because she never received a brochure from the Division of Administrative Hearing ("DOAH") intended to help simplify the procedures at a hearing.

However, DOAH is not required by any law or rule to provide that brochure to any party.

However, even if a corporation could not represent itself in an administrative hearing, the Hearing Officer could have correctly found her to be a qualified representative for Mo-Bo. Rule 60Q-2.008(5), F.A.C. states that:

It shall be presumed, although not conclusively, that a non-attorney representative who has appeared in previous administrative proceedings involving similar legal and factual issues and was determined to be a qualified representative therein is qualified to appear in subsequent similar administrative proceedings."

Ms. Uhl acted as the qualified representative of Mo-Bo for DOAH Case No. 94- 3164, a bond hearing which involved similar legal and factual issues to the instant case. The Hearing Officer may have followed this presumption and found Ms. Uhl to be a qualified representative. Therefore, because of the foregoing, this exception is DENIED.

Respondent's second exception is that there is no credible evidence upon which the Hearing Officer could base his Finding of Fact #20. Respondent points to several provisions in the transcript in support of this contention.

Paragraph #20 states:

20. Mo-Bo's buyer testified that he had a verbal agreement with Cope for the lower prices reflected on the marked-up versions of invoices #1 and #2. This contention is rejected as not credible. In any event, alleged verbal agreements were not consistent with the procedures the parties had agreed upon for doing business.

The agency may not reject the Hearing Officer's finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. Heifetz, at 1282. The Hearing Officer, finding the buyer's contention not credible, still had the direct testimony of Mr. Cope upon which to base this finding of fact. Tr. at 30-33, 43. This testimony is competent substantial evidence upon which the Hearing Officer based his finding of fact. Therefore, the Department is precluded from rejecting it.

Also in this exception, Respondent contends that there was an oral agreement stating that there was no requirement for a Federal inspection. In fact, the Hearing Officer found that Cope stated that no inspection would be necessary unless there was going to be a problem in receiving the price as invoiced. Finding of Pact #24. This finding is based upon the testimony of Mr. Cope. Tr. at 35. Because this testimony is competent substantial evidence upon which the Hearing Officer based his finding of fact, the Department is precluded from rejecting it. Therefore, this exception is DENIED.

Respondent's third exception is the contention that the finding by the Hearing Officer that a verbal agreement to change prices should have been confirmed in writing is incorrect. The Hearing Officer stated in Conclusions of Law #37 and #38 that Sec. 672.207, pertaining to the Statute of Frauds, was applicable in this case. Respondent was correct in pointing out that this statute is not the applicable law. See J.R. Sales, Inc. v. Dicks, 521 So.2d 366, 369 (1st DCA 1988).

However, Respondent's contention is only to the application of the Statute of Frauds. Conclusion of Law #37 further states that the evidence established that, with the exception of a $298 credit, Mo-Bo is indebted to Cope for the

full amount of Invoices #1 and #2. This statement merely restates Findings of Fact #1 through #20 and #29, and is based upon the competent substantial evidence of Mr. Cope's direct testimony. Tr. at 23-46. Conclusion of Law #37 also states that Respondent's contention that there was a verbal agreement to reduce the prices for the transactions reflected in Invoices #1 and #2 was not credible. This statement is also tantamount to a finding of fact, as it is part of the Hearing Officer's function "to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence." Heifetz, at 1282 (emphasis added). This finding is also based upon the competent substantial evidence of Mr. Cope's Direct testimony.

The agency may not reject the hearing officer's finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. Id. Therefore, this exception to the Conclusion of Law is APPROVED as to the reference to the Statute of Frauds, but DENIED as to the finding of indebtedness.

Likewise, Respondent's contention to Conclusion of Law #38 is only to the Statute of Frauds. Conclusion of Law #38 states:

Similarly, the evidence established that Mo-Bo is indebted to Cope for the full amount of Invoice #3. Mo-Bo's contention that this transaction was converted to a consignment

was not credible. Even if such a change had been agreed to, Mo-Bo had an obligation to issue a written confirmation of the allowed oral agreement See, Section 672.207, Florida Statutes. Furthermore, Mo-Bo was obligated to obtain an [sic] USDA inspection to confirm that the shipment did not conform with the condition listed on the manifest and/or

invoice. Finally, the evidence indicates that Mo-Bo was responsible for any losses incurred as a result of over-ripening that incurred during the five days it took for the produce to reach New Jersey.

The Statute of Frauds is mentioned as an alternative basis for finding Mo-Bo liable to the stated basis that the conversion to a consignment contract was not credible. The stated basis for the finding of liability, like the other statements in Conclusion of Law #38, is merely a restatement of Findings of Fact #21-#29. These findings of fact are based upon the competent, substantial evidence of Mr. Cope's direct testimony. Tr. at 23-46. Therefore, this exception is APPROVED as to the reference to the Statute of Frauds, but DENIED as to the finding of indebtedness.

Consideration of Petitioner's Response:

Petitioner's Response is an improper pleading in this matter. There is no provision in Sec. 120.57, F.S. or in the applicable administrative rules for such a response. Because a response to exceptions is not on the list of elements which comprise the record of a case, it cannot be considered by the Department. See Sec. 120.57(1)(b)6., F.S.

Consideration of Hearing Officer's Grant of Interest in Conclusion of Law #39:

The Hearing Officer granted interest on the invoices in dispute to the Petitioner. Conclusion of Law #39. However, the Hearing Officer had no statutory authority to do so, and admitted as much in his Recommended Order. Id.

More importantly, however, the complaint procedure in Sections 604. 15 through 604.34, F.S., is intended to provide recourse to "[a]ny person claiming himself to be damaged by any breach of the condition of a bond..." Sec.

604.21(1), F.S. The law provides that the bond be conditioned to secure payment to producers or their agents or representatives of the proceeds of all agricultural products handled or purchased by [the secured] dealer. See Sec.

604.20(1), P.S. The applicable law includes several "natural products" in its definition of "Agricultural products;" however, interest on an account is not among them. The bond issued by the surety was for compliance under Sections 604. 15 through 604.34, F.S.; therefore, a claim for interest is not a valid claim on the bond. This reduction in the recommended penalty is based upon a complete review of the record and is based upon Sections 604.20(1) and 604.21(1), F.S. Conclusion of Law #39 is hereby NOT ACCEPTED in this Final Order. Upon the consideration of the foregoing and being otherwise fully advised in the premises, it is

ORDERED AND ADJUDGED:

1. The Hearing Officer's Findings of Fact are ADOPTED in toto as this Agency's Findings of Fact.

   
   

2. The Hearing Officer's Conclusions of Law #1 through #36 are ADOPTED in toto as this Agency's Conclusions of Law.

   
   

3. The Hearing Officer's Conclusion of Law #37 is AMENDED AND ADOPTED to read as follows:

   
   

   37. The evidence in this case established that, with the exception of a $298 credit arising from an unrelated transaction, Mo-Bo is indebted to Cope for the full amount of Invoices #1 and #2. The contention that there was a verbal agreement to reduce the prices for the two transactions was not credible.

   
   

4. The Hearing Officer's Conclusion of Law #38 is AMENDED AND ADOPTED to read as follows:

   
   

   38. Similarly, the evidence established that Mo-Bo is indebted to Cope for the full amount of Invoice #3. Mo-Bo's contention that this transaction was converted to a consignment was not credible. Mo-Bo was obligated to obtain a USDA inspection to confirm that the shipment did not conform with the condition listed on the manifest and/or invoice. Finally, the evidence indicates that Mo-Bo was responsible for any losses incurred as a result of

   over-ripening that occurred during the five days it took for the produce to reach New Jersey.

5. The Hearing Officer's Conclusion of Law #39 is NOT ADOPTED in this Final Order.

   
   

6. As to Respondent's Exceptions:

   
   

   1. Respondent's first exception is DENIED.

   2. Respondent's second exception is DENIED.

   3. Respondent's third exception is APPROVED as to the references to the Statute of Frauds, but DENIED as to the findings of indebtedness.

      
      

7. As to Petitioner's Response, this pleading is an improper pleading and not part of the record below. Therefore, it is NOT CONSIDERED in this Final Order.

   
   

8. Respondent shall pay Petitioner $18,819.80 within 30 days of the filing of this Final Order.

   
   

9. Should Respondent fail to timely pay such sum, demand for payment shall be made upon GENERAL ACCIDENT AND INSURANCE COMPANY OF AMERICA, the surety underwriting Respondent's bond, and any other security filed with the Department. Proceeds therefrom to be held for distribution pursuant to the provisions of Florida law.

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 Clerk, 515 Mayo Building, Tallahassee, Florida 32399-0800, and a copy of the same with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.

DONE AND ORDERED this 27th day of February, 1995.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

Ann H. Wainwright Assistant Commissioner

FILED with the Clerk, this 27th day of February, 1995.

Joann Dixon Agency Clerk

COPIES FURNISHED TO:

Mitchell H. Stabbe, Esquire Holland & Knight

Suite 200

2100 Pennsylvania Avenue, N.W. Washington. DC 20037

Mario D. German, Esquire

3111 University Drive Suite 405 Coral Springs, Florida 33065

Stephen Menten, Hearing Officer Division of Admin. Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Brenda Hyatt, Chief Dept. of Agriculture

Bureau of Licensure and Bonds

508 Mayo Building

Tallahassee, Florida 32399-0800

General Accident Ins. Co. of America

436 Walnut Street Philadelphia, PA 19105-1109

Docket for Case No: 94-003164

Orders for Case No: 94-003164