STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BO BASS, )

)

Petitioner, )

)

vs. ) CASE NO. 97-0054A

)

HAPCO FARMS, INC., )

)

Respondent. )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard by video teleconferencing before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on March 14, 1997.

APPEARANCES

For Petitioner: Bo Bass, pro se

2829 Southwest State Road 45

Newberry, Florida 32669

For Respondent: Andrew B. Hellinger, Esquire

First Union Financial Center, Suite 2350 Miami, Florida 33131-2328

STATEMENT OF THE ISSUE

The issue is whether respondent is indebted to petitioner in the amount $5,838.59 as alleged in the complaint filed on September 19, 1996.

PRELIMINARY STATEMENT

This matter began on September 19, 1996, when petitioner, Bo Bass, filed a complaint with the Department of Agriculture and Consumer Services alleging that respondent, Hapco Farms, Inc.,

owed him $5,838.59 for watermelons sold to respondent in June 1996.

Respondent disputed this allegation and requested a formal hearing by letter dated January 3, 1997. `The case was referred by the agency to the Division of Administrative Hearings on January 8, 1997, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated February 6, 1997, a final hearing was scheduled by video teleconferencing on March 14, 1997. Under that arrangement, petitioner and the undersigned were present in Jacksonville, Florida, while respondent was present in Miami, Florida.

At final hearing, petitioner testified on his own behalf. Respondent presented the testimony of Gary Voisine, its field buyer. Also, it offered respondent’s exhibits 1, 2, and 4-7. All exhibits were received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by respondent on March 24, 1997, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Petitioner, Bo Bass, is a watermelon farmer in Alachua County, Florida. Respondent, Hapco Farms, Inc., is licensed as a dealer in agricultural products having been issued License No.

   8456 by the Department of Agriculture and Consumer Services. As required by state law, respondent has posted a $75,000 bond written by Insurance Company of North America, as surety, to assure proper accounting and payment to producers.

2. Freddie Bell is also a watermelon farmer who operates under the name of B & G Produce. That firm is located in Williston, Florida. According to petitioner, whenever Bell has extra trucks during watermelon season, he will load petitioner’s watermelons on those trucks, deliver them to B & G Produce’s shed for packing, and then sell them to various dealers. Upon collection of the moneys for the sale of such produce, Bell would then pay petitioner.

3. On June 17, 18 and 19, 1996, petitioner verbally agreed to entrust four loads of watermelons to B & G Produce for resale to third parties. Petitioner expected to be paid six cents per pound for his produce. On the same dates, respondent, through its field buyer, entered into an agreement with B & G Produce, but not petitioner, for the purchase of four loads of watermelons. The weight bills for those shipments reflect that, while Bo Bass was the grower on two of those shipments, B & G Produce was the seller of all four loads.

4. After the watermelons were sold to respondent and transported to its customers, a federal inspection determined that a number of watermelons were overripe and rotten. Because of this, a portion of the loads was “dumped.” This in turn

   reduced the amount of money due the seller. However, respondent made a proper accounting and payment to B & G Produce, and no claim has been filed by the seller against respondent. When petitioner ultimately received only $4,691.30 from B & G Produce, he filed a complaint against respondent seeking an additional

   $5,838.59.

   
   

5. There is no competent evidence that petitioner ever entered into an agreement to sell his watermelons to respondent. Therefore, if petitioner has a dispute over any moneys allegedly due, it lies with Bell, and not respondent.

   CONCLUSIONS OF LAW

   
   

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

7. As the party seeking relief, petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to the requested moneys. See, e.g., Fla. Dep't of Transp. v. J.W.C. Co., Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981).

8. Because respondent did not enter into an agreement with petitioner to purchase his watermelons, but rather dealt with B & G Produce at all times, and respondent made a proper accounting and payment to that producer, the claim by petitioner against respondent’s bond is without merit and should be denied.

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 denying petitioner’s claim against the bond of respondent.

DONE AND ENTERED this 31st day of March, 1997, in Tallahassee, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

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 31st day of March, 1997.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-0810

Richard Tritschler, Esquire Department of Agriculture and

Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

Bo Bass

2829 Southwest State Road 45

Newberry, Florida 32669 Andrew B. Hellinger, Esquire

First Union Financial Center, Suite 2350

200 South Biscayne Boulevard Miami, Florida 33131-2328

Insurance Company of North America 1601 Chestnut Street

Philadelphia, Pennsylvania 19192

Brenda D. Hyatt, Chief Bureau of License and Bond 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 within fifteen days. Any exceptions to this Recommended Order should be filed with the Department of Agriculture and Consumer Services.

Docket for Case No: 97-000054

Orders for Case No: 97-000054