STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BO BASS, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5357A

)

SOUTHERN FARMS, INC., AND )

U.S. FIDELITY AND GUARANTY COMPANY, )

)

Respondents1. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Don W. Davis, held a formal hearing in the above-styled case on February 19, 1997, in Gainesville, Florida.

APPEARANCES

For Petitioner: Bo Bass, pro se

2829 Southwest SR 45

Newberry, Florida 32669

For Respondent Southern Farms, Inc.,:

No Appearance

For Respondent U.S. Fidelity & Guaranty Company: No Appearance

STATEMENT OF THE ISSUES

The issue for determination is whether Respondents owe Petitioner approximately $2,018.33 for a quantity of watermelons which Petitioner alleges he sold to Respondents; secondarily,

1 The name of Co-Respondent U.S. Fidelity and Guaranty Co. has been added to the style in this case and the name of the Florida Department of Agriculture deleted as a party in correction of obvious error in the previous titling of the case.

resolution of this issue requires a determination of whether Respondents acted as an agent for Petitioner as opposed to a direct purchase of Petitioner's melons by Respondents.

PRELIMINARY STATEMENT

On September 19, 1996, Petitioner filed a complaint with the Florida Department of Agriculture and Consumer Services, alleging that Respondents owed him the sum of $2,018.33 for a quantity of watermelons.

Respondent Southern Farms filed an answer denying the claim.

Subsequently, the matter was transferred to the Division Of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the hearing, Petitioner presented the testimony of one witness, himself. In the absence of appearance by either Respondent or a representative for them, no evidence was presented or received on their behalf.

A transcript of the final hearing was not provided. Based on the evidence presented, the following findings of fact and conclusions of law are determined.

FINDINGS OF FACT

1. Petitioner is a farmer who produces agricultural products, including watermelons.

2. Respondent Southern Farms is a dealer of such products in the course of normal business activity.

3. Respondent U. S. Fidelity and Guaranty Company is the bonding agent for Respondent Southern Farms, pursuant to Section 604.20, Florida Statutes.

4. Petitioner’s testimony at the final hearing establishes that Respondent Southern Farms, Inc., is indebted to Petitioner for the total sum of $2,018.33 with regard to purchase of 47,350 pounds of watermelons belonging to Petitioner on or about June 17, 1996.

5. In the absence of presentment of any evidence at the final hearing in support of the claim of Respondent Southern Farms, as set forth in Southern Farms’ “Answer Of Respondent” filed on November 1, 1996, that no business dealings had been had between Petitioner and Southern Farms, such claim is not credited.

   CONCLUSIONS OF LAW

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

7. 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 agricultural products purchased. Sections 604.19 and 604.20, Florida Statutes. The watermelons in question are an agricultural product. Section 604.15(3), Florida Statutes.

8. Petitioner bears the burden of proving by a preponderance of the evidence that the arrangement between the parties in this instance was a direct sale as opposed to a brokerage arrangement.

Florida Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner has met this burden.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered finding Respondents are indebted to Petitioner for the total sum of $2,018.33 with regard to purchase of 47,350 pounds of watermelons belonging to Petitioner on or about June 17, 1996.

DONE AND ENTERED this 12th day of March, 1997, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997.

COPIES FURNISHED:

Bo Bass

2829 Southwest SR 45

Newberry, FL 32669

Southern Legal Farms, Inc. Legal Department

Post Office Box 1975 Salisbury, MD 21802

Elizabeth Stosur

US Fidelity and Guaranty Co. Post Office Box 1138 Baltimore, MD 21203-1138

Bob Crawford, Commissioner Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10 Tallahassee, FL 32399-1550

Richard Tritschler, Esquire Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10 Tallahassee, FL 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing & Bond Department of Agriculture Mayo Building, Room 508 Tallahassee, FL 32399-0800

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-005357

Orders for Case No: 96-005357