STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEN-BUD GROWERS, INC., )

)

Petitioner, )

)

vs. ) Case No. 97-1656A

) GEORGE TOWELL DISTRIBUTORS, INC., )

d/b/a FANTASTIC PRODUCE and ) AMERICAN SOUTHERN INSURANCE )

COMPANY, as Surety, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on October 8, 1997, with the parties appearing in West Palm Beach, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings presiding from Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert Sepos

Ben-Bud Growers, Inc.

6261 West Atlantic Boulevard Margate, Florida 33063

For Respondent: George Towell, President

George Towell Distributors, Inc. d/b/a Fantastic Produce

Post Office Box 159

Belle Glade, Florida 33430 STATEMENT OF THE ISSUES

Whether the Respondent is indebted to Petitioner as alleged in the Complaint filed with the Department of Agriculture and

Consumer Services.

PRELIMINARY STATEMENT

This case began on November 1, 1996, when the Petitioner, Ben-Bud Growers, Inc., executed a Complaint against the Respondent, George Towell Distributors, Inc., d/b/a Fantastic Produce and subsequently filed same with the Florida Department of Agriculture and Consumer Services. The complaint alleged Respondent was indebted to Petitioner for the non-payment of agricultural products and/or accounting as required by Sections 604.19-604.30, Florida Statutes. Petitioner sought compensation for such indebtedness against Respondents' surety, American Southern Insurance Company.

In response, Respondent filed an Answer of Respondent which disputed the amounts claimed to be owing and requested an administrative hearing in connection with the allegations. The matter was then forwarded to the Division of Administrative Hearings for formal proceedings on March 28, 1997.

At the hearing, Petitioner presented the testimony of the comptroller for the company, Robert Sepos. Petitioner's exhibit numbered 1 and all invoices attached to Petitioner's Complaint have been admitted into evidence. George Towell testified on behalf of Respondent.

A transcript of the proceedings has not been filed. The parties were granted ten days from the hearing date within which

to file proposed recommended orders. Neither has timely filed a proposed order.

FINDINGS OF FACT

1. Robert Sepos is the comptroller for Ben-Bud Growers, Inc. As such Mr. Sepos maintains the company records which document amounts owed to it by others.

2. As to this case, Mr. Sepos presented the invoices and statements due and owing from the Respondent. Based upon the unpaid invoices, Respondent owes Petitioner the sum of $2,626.00.

3. Respondent acknowledged that the sum of $2,626.00 is owed but claimed that such amount was not for the purchase of agricultural products as contemplated by Chapter 604, Florida Statutes.

4. According to Mr. Towell the bulk of the debt owed to Petitioner is for packaging and shipping fees for produce from growers represented by Fantastic Produce. Mr. Towell maintains that packing and shipping fees are not encompassed within Chapter 604, Florida Statutes.

5. Mr. Sepos could not verify what sum, if any, of the total amount claimed was for agricultural products (versus packing or shipping).

6. Based upon the admissions made by Mr. Towell, Respondent owes the Petitioner for agricultural products the sum of $347.25 in this case.

   CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

8. Section 604.20, Florida Statutes, provides, in pertinent part:

   1. Bond or certificate of deposit prerequisite; amount; form.-

      1. Before any license is issued, the applicant therefor shall make and deliver to the department a surety bond or certificate of deposit in the amount of at least $3,000 or in such greater amount as the department may determine, not exceeding the maximum amount of business done or estimated to be done in any month by the applicant. Such bond must be executed by a surety corporation authorized to transact business in the state. For the purposes of ss. 604.19-604.21, the term "certificate of deposit" means a certificate of deposit at any recognized financial institution doing business in the United States. Such bond or any certificate of deposit assignment or agreement shall be upon a form prescribed or approved by the department and shall be conditioned to secure the faithful accounting for and payment to producers or their agents or representatives of the proceeds of all agricultural products handled or purchased by such dealer. The department shall determine by rule whether an annual or continuous bond or certificate of deposit will be required. (Emphasis added.)

9. The Petitioner bears the burden of proof in this cause to establish the amount of indebtedness claimed to be due and owing which is subject to the bond provisions of Chapter 604, Florida Statutes. Except as admitted by Respondent, Petitioner has failed to meet that burden. In this case, the Respondent admitted owing the full amount claimed but argues same is not due

for agricultural products as envisioned by the bond provisions of Chapter 604, Florida Statutes. Respondent does not dispute the debt, merely that the bond should not be applied to it since the bond claimants who are rightfully owed will receive less if it is applied to this obligation. Mr. Towell, by his sworn response to the Complaint, admitted that the sum of $347.25 is the correct amount of this bond claim. Petitioner has not proven otherwise.

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 approving Petitioner's claim in the amount of $347.25 and disallowing the remainder.

DONE AND ENTERED this 7th day of November, 1997, in Tallahassee, Leon County, Florida.

J. D. Parrish 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 7th day of November, 1997.

COPIES FURNISHED:

Brenda D. Hyatt, Chief Department of Agriculture

and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399

Richard Tritschler, General Counsel Department of Agriculture

and Consumer Services The Capitol, Plaza 01 Tallahassee, Florida 32399

Ben Litowich, President Ben-Bud Growers, Inc.

6261 West Atlantic Boulevard Margate, Florida 33063

George Towell, President

George Towell Distributors, Inc. d/b/a Fantastic Produce

Post Office Box 159

Belle Glade, Florida 33430

American Southern Insurance Company Legal Department

3715 Northside Parkway, 8th Floor Atlanta, Georgia 30327

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: 97-001656

Orders for Case No: 97-001656