STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RO-BEE PRODUCE COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4227A

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

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on November 8, 1995, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Mark S. London, Esquire

Sheridan Hills Professional Plaza 4030-C Sheridan Street

Hollywood, Florida 33021 For Respondent: No appearance.

STATEMENT OF THE ISSUES

Whether Respondents are indebted to Petitioner for produce sold by Petitioner to Respondent, Mo-Bo Enterprises, Inc., and, if so, the amount of the indebtedness.

PRELIMINARY STATEMENT

Respondent, Mo-Bo Enterprises, Inc. (Mo-Bo), is a dealer in agricultural products licensed by the Florida Department of Agriculture pursuant to the provisions of Chapter 604, Florida Statutes. Respondent, Armor Insurance Company, is Mo-Bo's surety company. Petitioner sold to Mo-Bo agricultural products in December 1994 and January 1995 for which Petitioner has not been paid. Petitioner thereafter filed a timely complaint against Respondents pursuant to the provisions of Section 604.21, Florida Statutes. A final order was entered by the Florida Department of Agriculture because it did not receive a timely response to the complaint by the Respondents. Thereafter, the Respondents were able to establish that they had timely responded to the complaint, the final order was rescinded, and the matter was referred to the Division of Administrative Hearings for formal proceedings.

The start of the formal hearing was delayed for approximately thirty minutes until it was learned from the office of Charles Barnard, Mo-Bo's attorney in this proceeding, that no one planned to appear on behalf of the

Respondents. There was no explanation by Mr. Barnard or his office as to why he neglected to inform the Hearing Officer or Petitioner that he did not plan to attend the formal hearing.

Petitioner presented the testimony of Lawrence Rosenthal, a vice-president and owner of the Petitioner, and it presented a total of fourteen exhibits.

No transcript of the proceedings has been filed. No party has filed a post-hearing submittal.

FINDINGS OF FACT

1. Respondent, Mo-Bo Enterprises, Inc. (Mo-Bo) is a dealer in agricultural products within the meaning of Section 605.15, Florida Statutes. 1/ Mo-Bo is licensed by the Florida Department of Agriculture as a dealer in agricultural products pursuant to Section 604.19, Florida Statutes. Section 604.20, Florida Statutes requires that as a condition of being licensed, an applicant for licensure as a dealer in agricultural products must post a surety bond in the amount of at least $3,000 or in such greater amount as the Department of Agriculture and Consumer Services may require. Respondent, Armor Insurance Company, is Mo-Bo's surety company.

   
   

2. Petitioner, a producer of agricultural products, sold to Mo-Bo certain produce in December 1994 and January 1995. For each of the transactions set forth below, Mo-Bo has failed to pay to Petitioner the contract price, despite timely demand for payment.

   
   

3. As evidenced by Invoice 56222, Petitioner sold to Mo-Bo on December 6, 1994, a quantity of cucumbers for the sum of $772.50.

   
   

4. As evidenced by Invoice 56233, Petitioner sold to Mo-Bo on December 9, 1994, a quantity of produce for the contract price of $3,776.00. This total represents the following: a quantity of xlarge (sic) peppers for the sum of

   $2,240.00, a quantity of super select cucumbers for the sum of $1,440.00, a quantity of fancy eggplants for the sum of $96.00, and a quantity of snowpeas for the sum of $480.00.

   
   

5. As evidenced by Invoice 56242, Petitioner sold to Mo-Bo on December 12, 1994, a quantity of fancy eggplants for the sum of $1,600.00.

   
   

6. As evidenced by Invoice 56248, Petitioner sold to Mo-Bo on December 13, 1994, a quantity of produce for the contract price of $5,216.00. This total represents the following: a quantity of xlarge (sic) peppers for the sum of

   $2,560.00, a quantity of super select cucumbers for the sum of $2,560.00, and a quantity of fancy eggplants for the sum of $96.00.

   
   

7. As evidenced by Invoice 56254 Petitioner sold to Mo-Bo on December 16, 1994, a quantity of produce for the contract price of $2,223.75. This total represents the following: a quantity of sun tan peppers for the sum of $723.75 and a quantity of select cucumbers for the sum of $1,500.00.

   
   

8. As evidenced by Invoice 56262 Petitioner sold to Mo-Bo on December 20, 1994, a quantity of produce for the contract price of $2,800.00. This total represents the following: a quantity of super select cucumbers for the sum of

   $2,500.00 and a quantity of fancy zucchini for the sum of $300.00.

9. As evidenced by Invoice 86530A Petitioner sold to Mo-Bo on January 6, 1995, a quantity of xtra (sic) fancy zucchini for the sum of $1,000.00.

   
   

10. As evidenced by Invoice 56286 Petitioner sold to Mo-Bo on January 6, 1995, a quantity of xtra (sic) fancy zucchini for the sum of $1,000.00.

    
    

11. As evidenced by Invoice 86540A Petitioner sold to Mo-Bo on January 6, 1995, a quantity of xtra (sic) fancy zucchini for the sum of $200.00.

    
    

12. As evidenced by Invoice 56290 Petitioner sold to Mo-Bo on January 11, 1995, a quantity of xtra (sic) fancy zucchini for the sum of $2,400.00.

    
    

13. Mo-Bo is indebted to Petitioner in the total amount of $20,988.25 for the transactions evidenced by Invoices 56222, 56233, 56242, 56248, 56254, 56262, 86530A, 56286, 86540A, and 56290.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. 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. See, Sections 604.19, and 604.20, Florida Statutes.

    
    

16. 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 pursuant to the provisions of Section 604.21, Florida Statutes. Petitioner timely filed its complaint against Respondents pursuant to those provisions of law.

    
    

17. As the party claiming breach of the sales contracts with Respondent, Petitioner bears the burden of showing by a preponderance of the evidence its entitlement to the compensation it claims from the Respondents. Rule 28- 6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has met that burden in this proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture

and Consumer Services that adopts the findings of fact and conclusions contained herein and orders Mo-Bo Enterprises, Inc., to pay to Petitioner the sum of

$20,988.25. The final order should also order Armor Insurance Company to pay this amount, up to its maximum liability under its bond, if Mo-Bo Enterprises, Inc., does not pay this amount.

DONE AND ENTERED this 4th day of December, 1995, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 4th day of December 1995.

ENDNOTE

1 Section 604.15(1), Florida Statutes, defines the term "dealer in agricultural products" as follows:

1. "Dealer in agricultural products" means any person ... engaged within this state in the business of purchasing, receiving, or soliciting agricultural products from the producer or his agent or representative for resale or processing for sale; acting as an agent for such producer in the sale of agricultural products for the account of the producer on a net return basis; or acting as a negotiating broker between the producer or his agent or representative and the buyer.

COPIES FURNISHED:

Mark S. London, Esquire

Sheridan Hills Professional Plaza 4030-C Sheridan Street

Hollywood, Florida 33021

Charles Barnard, Esquire

200 Southeast 6th Street, Suite 205 Fort Lauderdale, Florida 33301 Attorney for Mo-Bo Enterprises

Mark J. Albrechta, Esquire Post Office Box 15250 Tampa, Florida 33684-5250

Attorney for Armor Insurance

Brenda D. Hyatt, Chief Department of Agriculture Bureau of License and Bond Mayo Building, Room 508

Tallahassee, Florida 32399-0800

Richard Tritschler, Esquire Department of Agriculture and

Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

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

Tallahassee, Florida 32399-0810

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 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

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

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICE

Ro-Bee Produce Company, Petitioner,

vs. DOAH CASE NO. 95-4227A

LB CASE NO. 95-0030, ORDER

Mo-Bo Enterprises, inc., LB CASE NO. 96-0001, FINAL and Armor Insurance Company, ORDER

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 May 24, 1995, the Petitioner, Ro-Bee Produce Company, an Agent for producers of Florida agricultural products, timely filed an administrative complaint pursuant to Section 604.21, Florida Statutes, to collect $20,988.25 for mixed vegetables it sold to Respondent, a licensed dealer in agricultural products.

Respondent's license for the time in question was subpoenaed by a bond required by Section 604.20, Florida Statutes, written by Armor Insurance Company in the amount of $75,000. Subsequent to the Department's entry of its Order, the Respondent, through their attorney requested a hearing, therefore, this matter was referred to the Division of Administrative Hearings for an administrative hearing in accordance with the provisions of Section 120.57 (1), Florida Statutes. An administrative hearing was held in this matter on November 8, 1995. The Hearing Officer rendered his Recommended Order on December 4, 1995, a copy of which is attached hereto as Exhibit A, to which neither party filed written exceptions with this Department.

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

ORDERED:

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 are adopted in toto as this agency's conclusions of law.

   
   

3. The Hearing Officer's Recommendation is modified to reflect that Respondent, Mo-Bo Enterprises, Inc., pay Petitioner $20,988.25 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. The Hearing Officer's Recommendation is further modified to stipulate that in the event Respondent fails to pay Petitioner $20,988.25 within (15) days of the Final Order, Armor Insurance Company, as Surety for Respondent is hereby ordered to provide payment under the conditions and provisions of the Bond, to BOB CRAWFORD, COMMISSIONER OF AGRICULTURE AND CONSUMER SERVICES, as Obligee on the Bond. Should responsibility for payment evolve to the Surety, Armor Insurance Company will be notified by this office.

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

DONE AND ORDERED this 29th day of January, 1996.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

ANN H. WAINWRIGHT

Assistant Commissioner of Agriculture

Filed with Agency Clerk this 29th day of January, 1996.

Joann S. Dixson Agency Clerk

COPIES FURNISHED:

Mr. Mark S. London, Esquire Mr. Charles Barnard, Esquire Sheridan Hills Attorney for Mo-Bo Professional Plaza Enterprises, Inc.

4030-C Sheridan Street 200 Southeast 6th Street Hollywood, Florida 33021 Suite 205

Fort Lauderdale, Florida 33301

Mr. Mark J. Albrechta, Esquire

Attorney for Armor Insurance Mr. Claude B. Arrington Post Office Box 15250 Hearing Officer

Tampa, Florida 33684 Division of Administrative Hearings, The DeSoto Bldg

Mr. Robert E. Goldman, Esquire 1230 Apalachee Parkway 10920 Wilshire Blvd., Suite 650 Tallahassee, Florida 32399 Los Angeles, California

90024-6508 Mo-Bo Enterprises, Inc.

P. O. Box 1899

Ro-Bee Produce Company Pompano Beach, Florida 33061 700 NW 12th Terrace

Pompano Beach, Florida 33069 Mr. Raphael Impellizzeri

Field Representative

Docket for Case No: 95-004227

Orders for Case No: 95-004227