STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REDLAND BROKERS EXCHANGE, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 95-2121A

) MO-BO ENTERPRISES, INC., and ) ARMOR INSURANCE COMPANY, as )

Surety, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case before Patricia Hart Malono, Hearing Officer of the Division of Administrative Hearings, on September 6, 1995, at Miami, Florida.

APPEARANCES

The parties were represented at hearing as follows: For Petitioner: Frank T. Basso, Jr., Owner

Redland Brokers Exchange, Inc.

401 North Redland Road Homestead, Florida 33030

For Respondent: No appearance Mo-Bo Enterprises

For Respondent: No appearance Armor Insurance Co.

STATEMENT OF THE ISSUE

Whether Redland Brokers Exchange, Inc., is owed $2,602.60 for agricultural products ordered by and delivered to Mo-Bo Enterprises, Inc.

PRELIMINARY STATEMENT

On March 20, 1995, the Florida Department of Agriculture and Consumer Services sent a Notice of Filing of a Complaint via certified mail to Mo-Bo Enterprises, Inc., ("Mo-Bo") and to Armor Insurance Company ("Armor"), its surety. The complaint referenced in the notice was filed by Redland Brokers Exchange, Inc., ("Redland Brokers"), which alleged that Mo-Bo was indebted to it for $2,602.60 for various agricultural products which were ordered by and delivered to Mo-Bo. Mo-Bo timely filed an answer denying the validity of the complaint. The case was referred to the Division of Administrative Hearings for a formal hearing to be conducted pursuant to section 120.57(1), Florida

Statutes. By Amended Notice of Hearing dated July 14, 1995, the formal hearing in this matter was scheduled for September 6, 1995.

At the hearing, Redland Brokers presented the testimony of Amy L. Glasow and Frank T. Basso, Jr., its owners. Redland Brokers's Exhibits 1 - 5 were offered and admitted into evidence. Although Mo-Bo and Armor were duly notified of the hearing, neither appeared. No transcript of the proceedings was ordered, and Redland Brokers did not file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. Redland Brokers is an agent for producers of Florida-grown agricultural products.

   
   

2. Mo-Bo is a dealer in such products in the normal course of its business and is bonded by Armor.

   
   

3. During the period from October 28, 1994, until November 11, 1994, Mo-Bo ordered various agricultural products from Redland Brokers. In accordance with the usual practice of Redland Brokers when doing business with Mo-Bo, the orders were accepted by telephone and the items were loaded onto trucks sent by Mo-Bo to Redland Brokers's warehouse.

   
   

4. Redland Brokers sent the following invoices to Mo-Bo for agricultural products order by and delivered to Mo-Bo:

   
   

   November19, 1994 Invoice Number 275 $180.00

   November5, 1994 Invoice Number 290 756.00

   November11, 1994 Invoice Number 319 793.00

   November19, 1994 Invoice Number 334 353.60

   November19, 1994 Invoice Number 338 520.00

   TOTAL $2,602.60

   
   

   Payment was due twenty-one days from the date each invoice was mailed.

   
   

5. Despite repeated demands, Mo-Bo has not paid any of the amounts reflected in these invoices. As of September 6, 1995, the date of the formal hearing, $2,602.60 remained due and owing to Redland Brokers.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. 120.57(1), Fla. Stat.

   
   

7. Dealers of agricultural products are required to be licensed by the Department of Agriculture and Consumer Services. In order to insure payment by dealers for agricultural products purchased, such dealers must post a bond or other security as a condition of licensure. 604.19, .20, Fla. Stat. The vegetables sold in this case are agricultural products, as defined by section 604.15(3), Florida Statutes.

8. Any person claiming to have been damaged by a dealer's failure to pay for agricultural products duly ordered, delivered, and accepted, may file a complaint against the dealer and its surety. 604.21, Fla. Stat.

   
   

9. The products ordered from Redland Brokers and invoiced as set out above were delivered to Mo-Bo. Mo-Bo has failed to pay the amounts reflected in these invoices and owes Redland Brokers $2,602.60, as claimed.

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 ordering Mo-Bo Enterprises, Inc., to pay $2,602.60 to Redland

Brokers Exchange, Inc., and, if Mo-Bo Enterprises, Inc., does not pay this amount, ordering Armor Insurance Company to pay this amount, up to its maximum liability under its bond.

DONE AND ENTERED this 10th day of October 1995, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 10th day of October 1995.

COPIES FURNISHED:

Frank T. Basso, Jr., Owner Amy L. Glasow, Owner

Redland Brokers Exchange, Inc.

401 North Redland Road Homestead, Florida 33030

Paul Boris

Mo-Bo Enterprises, Inc. Post Office Box 1899

Pompano Beach, Florida 33061

Mark J. Albrechta, Esquire Armor Insurance Company Legal Department

Post Office Box 15250 Tampa, Florida 33684-5250

The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, Esquire General Counsel

Department of Agriculture and Consumer Services

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture and

Consumer Services

508 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.

Docket for Case No: 95-002121

Orders for Case No: 95-002121