STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH S. HALL & R. P. WIGHT, ) d/b/a SUWANEE FARMS, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1348A

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

)

Respondents. )

) JOSEPH S. HALL & R. P. WIGHT, ) d/b/a SUWANEE FARMS, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1349A

) MO-BO ENTERPRISES, INC., AND ) ARMOR INSURANCE COMPANY )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on September 14, 1995, in Tallahassee, Florida, before Carolyn S. Holifield, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bill Reinhardt

Personal Representative Post Office Drawer 1287 Tifton, Georgia 31793

For Respondent: Mo-Bo Enterprises, Inc.

No Appearance

For Respondent: General Accident Insurance

Company of America No Appearance

For Respondent: Armor Insurance Company

No Appearance

STATEMENT OF THE ISSUES

The issue is whether Respondent, Mo-Bo Enterprises, Inc., or its sureties are indebted to Petitioner, Suwanee Farms, for corn sold to Mo-Bo Enterprises, Inc.

PRELIMINARY STATEMENT

On March 17, 1995, Petitioner, Suwanee Farms (Petitioner), filed two Complaints with the Florida Department of Agriculture and Consumer Services alleging that Respondent, Mo-Bo Enterprises, Inc., (Mo-Bo Enterprises) owed Petitioner money for corn, which it had sold to Mo-Bo Enterprises.

The first Complaint alleged that Mo-Bo Enterprises, or its surety and Co- Respondent, General Accident Insurance Company of America, owes Petitioner

$23,676.00. The second Complaint alleged that Mo-Bo Enterprises or Co- Respondent, Armor Insurance Company, is indebted to Petitioner in the amount of

$13,530.00. Both complaints alleged that the funds owed to Petitioner are for corn it sold to Mo-Bo Enterprises. Respondent, Mo-Bo Enterprises, denied the allegations in both complaints and requested a formal hearing.

On March 17, 1995, these matters were referred to the Division of Administrative Hearings to conduct a formal hearing. The cases involving Petitioner's first complaint and second complaint were assigned Case Nos. 95- 1348A and 95-1349A, respectively. On May 1, 1995, the undersigned consolidated these cases with Case Nos. 95-1347A, 95-1350A, and 95-1351A and set the formal hearing for July 18, 1995. Subsequently, the cases were severed, with Case Nos. 95-1348A and 95-1349A remaining consolidated. The formal hearing was set for September 14, 1995.

At the hearing, Petitioner called one witness, Cindy Payne, office manager for Suwanee Farms, and offered and had admitted into evidence 30 exhibits.

Respondents, Mo-Bo Enterprises, General Accident Insurance Company of America, and Armor Insurance Company, after being duly noticed, did not appear at the hearing.

A transcript of the hearing was not ordered by any of the parties.

Therefore, proposed recommended orders were required to be filed on or before September 25, 1995. Petitioner timely filed a proposed recommended order in this matter. Only paragraph (7) of Petitioner's Proposed Findings of Fact is addressed in the Appendix to this Recommended Order. The other paragraphs included in Petitioner's Proposed Findings of Fact recite preliminary matters, rather than the findings of fact. Accordingly, paragraphs 1-6 of Petitioner's Findings of Fact are included in the Preliminary Statement portion of the Recommended Order.

FINDINGS OF FACT

Based upon consideration of the testimony of witnesses and the documentary evidence, the following relevant findings of fact are determined:

1. Petitioner, Suwanee Farms, is a producer of agricultural products in Florida.

   
   

2. At all times relevant to this proceeding, Respondent, Mo-Bo Enterprises, was licensed by the Department of Agriculture and Consumer Services as a dealer of agricultural products. During the period between

   September 20, 1994 and October 12, 1994, inclusive, Respondent, Mo-Bo Enterprises, was bonded by Co-Respondent, General Accident Insurance Company of America. Between October 13, 1994 and October 29, 1994, inclusive, Respondent, Mo-Bo Enterprises, was bonded by Co-Respondent, Armor Insurance Company.

   
   

3. Petitioner sold corn to Respondent, Mo-Bo Enterprises, between the period September 20, 1994 and October 29, 1994. Respondent was given a Bill of Lading for each order of corn it received. Petitioner sent an invoice to Mo-Bo Enterprises for each shipment of corn that was delivered to Mo-Bo Enterprises. The amount of each invoice represented the price of the corn to which Petitioner and Respondent, Mo-Bo Enterprises, had agreed.

   
   

4. Petitioner received a complaint from Mo-Bo Enterprises regarding corn which Petitioner had shipped to Mo-Bo Enterprises on October 4, 1994. Based on this complaint, Petitioner reduced the price of the corn by seventy-five cents (.75) per crate. As a result of this reduction, the adjusted total price for the shipment of corn reflected on Invoice No. 002392 is $1050.00, rather than the $1,200.00 shown.

   
   

5. The terms of payment are set forth on the face of the invoice and require payment within thirty (30) days of the invoice date.

   
   

6. The total amount of the invoices for shipments of corn sold and delivered to Mo-Bo Enterprises by Petitioner between September 20, 1994 and October 12, 1994, is $23,950.00.

   
   

7. The total amount invoiced by Petitioner to Mo-Bo Enterprises, for corn sold and shipped to Mo-Bo Enterprises between October 13, 1994 and October 29, 1995, is $13,716.00.

   
   

8. Despite repeated demands by Petitioner, Mo-Bo Enterprises has refused to pay for any of the shipments of corn. As of the date of the formal hearing, the invoice for each shipment of corn made between September 20, 1994 and October 29, 1994, remained due and owing and unpaid.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Sections 120.57(1) and 604.21(6), Florida Statutes.

   
   

10. Petitioner is a "producer" of agricultural products as defined in Sections 604.15(5), Florida Statutes. The vegetable in question, corn, comes within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes.

    
    

11. Respondent is a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes.

    
    

12. Dealers of agricultural products are licensed by the Department of Agriculture and Consumer services. Section 604.17, Florida Statutes. Dealers must post a bond or other security as a precondition to licensure, insuring payment to producers for all agriculture products purchased. Sections 604.19 and 604.20, Florida Statutes.

13. Any person claiming to having been damaged by the breach of the conditions of a bond given by a licensed agricultural dealer, such as Respondent, may file a complaint against the dealer and its surety. Section 604.21, Florida Statutes.

    
    

14. Petitioner has the burden of proving by a preponderance of the evidence that Respondent, Mo-Bo Enterprises, owes Petitioner the sums alleged in the complaints. Florida Department of Transportation v. J.W.C., Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981).

    
    

15. Petitioner has met this burden by presenting competent and substantial evidence supporting its claim to the payment of the amounts shown on the invoices. This evidence was unrefuted by Respondents, who neither appeared at the hearing nor presented any evidence.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter

a Final Order (1) requiring Respondent, Mo-Bo Enterprises, Inc., or its surety Co-Respondent, General Accident Insurance Company of America, to pay Petitioner

$23,950.00, and (2) further directing Respondent, Mo-Bo Enterprises, Inc., or its surety, Co-Respondent Armor Insurance Company, to pay Petitioner $13,716.00.

DONE and ENTERED this 17th day of October, 1995, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

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 17th day of October, 1995.

APPENDIX

To comply with the requirements of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted.

Petitioner's proposed findings of fact.

Paragraph 7. Accepted and incorporated to the extent not subordinate and unnecessary.

COPIES FURNISHED:

Richard Tritschler, Esquire Department of Agriculture and

Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

Mo-Bo Enterprises, Inc.

P.O. Box 1899

Pompano Beach, Florida 33061

Don Bieda, Esquire Legal Department

General Accident Insurance Co.

436 Walnut Street

Philadelphia, Pennsylvania 19105-1109

Joseph S. Hall & R. P. Wight Suwanee Farms

Route 2 Box 3641

O'Brien, Florida 32071

Mark J. Albrechta, Esquire Legal Department

Armor Insurance Company

P.O. Box 15250

Tampa, Florida 33684-5250

Brenda Hyatt, Chief Department of Agriculture and

Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

Bill Reinhardt, Esquire Rob Reinhardt, Esquire

P.O. Box 1287

Tipton, Georgia 31793

Charles Barnard, Esquire

200 SE 6th Street Ste. 205 Ft. Lauderdale, Florida 33301

Bradford A. Thomas, Esquire Suite 900

Brickell Centre 799 Brickell Plaza

Miami, Florida 33131-2805

Honorable Bob Crawford Commissioner

Department of Agriculture and Consumer Services

The Capitol, PL-10

Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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.

Docket for Case No: 95-001348

Orders for Case No: 95-001348