STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NOLAN FARMS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-4512A

)

1. PAGANO & SONS, INC. and ) FIDELITY & DEPOSIT COMPANY OF ) MARYLAND, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Final hearing was held in Ft. Myers, Florida, on October 16, 1995, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

   
   

   APPEARANCES

   The parties were represented at the hearing as follows: For Petitioner: Buddy Session

   Nolan Farms, Inc.

   3401 Sand Road

   Cape Coral, Florida 33909 For Respondent: no appearance

   STATEMENT OF THE ISSUE

   
   

   The issue in this case is whether Respondent owes Petitioner money for watermelons and, if so, how much.

   
   

   PRELIMINARY STATEMENT

   
   

   By Complaint dated July 17, 1995, Petitioner alleged that Respondent M. Pagano & Son's, Inc., owed it $10,566.40 for watermelons delivered in May 1995.

   
   

   By letter dated August 10, 1995, from Pete Pagano, of Respondent M. Pagano & Son's, Inc., to the Department of Agriculture, without a copy to Petitioner, Mr. Pagano advised that he and Carlie Nolan Mancil had recently agreed that the indebtedness was that of Morris Pagano, Inc., not M. Pagano & Son's, Inc.

   
   

   At the final hearing, Petitioner called two witnesses and offered into evidence a single exhibit, which was admitted. Respondent made no appearance.

   
   

   No transcript was ordered, and Petitioner waived its right to file proposed findings of fact.

   FINDINGS OF FACT

   
   

   1. Petitioner and Respondent M. Pagano & Son's, Inc. (Respondent) have done business for 20 years. Petitioner grows watermelons, and Respondent buys watermelons for resale. Petitioner's employees have always done business with Respondent by telephone with Morris Pagano.

      
      

   2. Following a telephone call between Mr. Pagano and Buddy Session, who is Petitioner's salesman, Petitioner sold Respondent a load of watermelons at 14) per pound on May 9, 1995. The weight of the watermelons was 43,560 pounds.

      
      

   3. On May 10, 1995, Petitioner sold Respondent two loads of watermelons at a preagreed price of 14) per pound. The weight of the first load was 40,080 pounds, and the weight of the second load was 44,940 pounds.

      
      

   4. On May 13, 1995, Petitioner sold Respondent two loads of watermelons at a preagreed price of 8) per pound. The weight of the first load was 47,660 pounds, and the weight of the second load was 47,740 pounds.

      
      

   5. On May 14, 1995, Petitioner sold Respondent a load of watermelons at a preagreed price of 8) per pound. The weight of the load was 45,920 pounds.

      
      

   6. On May 15, 1995, Petitioner sold Respondent a load of watermelons at a preagreed price of 8) per pound. The weight of the load was 43,420 pounds.

      
      

   7. The total due for the seven truckloads of watermelons was $32,780.40.

      
      

   8. After a few days, Mr. Session telephoned Mr. Pagano and asked for payment. As in all other telephone calls that he initiated, Mr. Session called Mr. Pagano at Respondent's telephone number. At no time did Mr. Pagano or anyone else inform Mr. Session or anyone else employed by Petitioner that the sale was not to Respondent.

      
      

   9. Following the telephone call, Mr. Pagano sent his field representative to Petitioner's office to settle the account. The field representative was the same person who normally represented Respondent.

      
      

   10. The market for watermelons had deteriorated since the beginning of May. Respondent's field representative tried to negotiate the price down on this basis, but he did not mention anything about a change in the identity of the buyer. Mr. Session refused to reduce the price, noting that they did not have any complaints about the quality of the watermelons.

       
       

   11. The field representative then gave Mr. Session a check dated May 22, 1995, drawn on Morris Pagano, Inc., in the amount of $22,214, which Mr. Session accepted as part payment of the amount due.

       
       

   12. On June 7, 1995, Carlie Nolan Mancil, as president of Petitioner, sent a certified letter, return receipt requested, to Mr. Pagano at Respondent, advising of the unpaid balance of $10,566.40 and warning that he would file a complaint with the Department of Agriculture, if payment were not made within 10 days. Respondent never responded to the letter.

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the subject matter. Sections 120.57(1) and 604.21(6), Florida Statutes. (All references to Sections are to Florida Statutes.)

       
       

   14. Petitioner has proved that Respondent owes Petitioner $10,566.40 for watermelons. The record establishes that the sales were to Respondent, and not a third party.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent M.

Pagano & Son's, Inc. owes Petitioner the sum of $10,566.40. ENTERED on October 19, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

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 on October 19, 1995.

COPIES FURNISHED:

Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810

Richard Tritschler, General Counsel Department of Agriculture

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

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture

508 Mayo Building Tallahassee, FL 32399-0800

Buddy Session Nolan Farms, Inc. 3401 Sand Road

Cape Coral, FL 33909

M. Pagano & Son's, Inc.

59 Brooklyn Terminal Market Brooklyn, NY 11236

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.

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

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

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Nolan Farms, Inc., Petitioner,

vs DOAH CASE NO. 95-4512A

LB CASE NO. 95-0050

1. Pagano and Sons, Inc., and Fidelity and Deposit Company of Maryland,

   
   

   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 July 24, 1995, the Petitioner, Nolan Farms, Inc., a producer of agricultural products as defined by Section 604.15 (5), Florida Statutes, timely filed an administrative complaint pursuant to Section 604.21, Florida Statutes, to collect $10,566.40 for watermelons 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 Fidelity and Deposit Company of Maryland in the amount of $75,000. The Respondent's answer denied the claim as valid and alleged the claimed debt was not theirs, but was owed by another entity. A hearing was not requested by the Respondent, but was requested by the Department due to disputed issues of fact. Therefore, this matter was referred to the Division of Administrative Hearings

   (DOAH) 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 October 16, 1995. The Hearing Officer rendered his Recommended Order on October 19, 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, M. Pagano and Sons, Inc., pay Petitioner $10,566.40 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 $10,566.40 within fifteen (15) days of the Final Order, Fidelity and Deposit Company of Maryland, 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, Fidelity and Deposit Company of Maryland 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 5th day of December, 1995.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

ANN H. WAINWRIGHT

Assistant Commissioner of Agriculture Filed with Agency Clerk this 5th day of December,1995.

Joann S. Dixon Agency Clerk

COPIES FURNISHED:

Nolan Farms, Inc. M. Pagano and Sons, Inc.

3401 Sand Road 59 Brooklyn Terminal Market

Cape Coral, FL 33909 Brooklyn, NY 11236

Mr. Robert E. Meale Fidelity and Deposit Company Hearing Officer of Maryland

Division of Administrative P.O. Box 1227 Hearings Baltimore, MD 21203

The DeSoto Building

1230 Apalachee Parkway Mr. David Bokan Tallahassee, FL 32399-1550 Field Representative

Docket for Case No: 95-004512

Orders for Case No: 95-004512