The Issue The issue is whether Respondent Gulf Coast Foodservice, Inc., or its surety, Respondent United Pacific Insurance Company, is liable for funds due to Petitioner Hillandale Farms, Inc. for the sale of agricultural products.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner produces eggs on a farm that it owns in or near Lake City, Florida. Respondent Gulf Coast is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. Respondent Gulf Coast operates a food service distributorship in the state of Florida. Eggs are agricultural products as defined in Section 604.15(3), Florida Statutes. Respondent United Pacific is Respondent Gulf Coast's surety. Pursuant to an agreement between Petitioner and Respondent Gulf Coast, Petitioner sold and shipped eggs to Respondent Gulf Coast from Petitioner's Hillandale-Bushnell Division. Respondent Gulf Coast initially paid thousands of dollars on invoices for shipments of eggs it received from Petitioner. On August 25, 1997, Respondent Gulf Coast paid $1,287.00 on its account with Petitioner. This payment created an overpayment in the amount of $247.50 for Invoice No. 21938 dated May 31, 1997. As of October 23, 1997, Respondent Gulf Coast's account with Petitioner included the following unpaid/overpaid invoices: 6/19/97 22144 810.00 7/2/97 22489 1,665.00 7/15/97 22870 1,701.00 7/28/97 23211 2,340.00 8/11/97 23606 2,043.00 8/18/97 23800 1,665.00 8/25/97 24318 1,233.00 Total Balance Due $11,209.50 Invoice Date Invoice No. Balance Due 5/31/97 21938 $ (247.50) Respondent Gulf Coast currently owes Petitioner for unpaid invoices in the amount of $11,209.50.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Department of Agriculture and Consumer Services enter a Final Order requiring Respondent Gulf Coast, or its surety, Respondent Union Pacific, to pay Petitioner for unpaid invoices in the amount of $11,209.50. DONE AND ENTERED this 1st day of October, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1998. COPIES FURNISHED: Stephen C. Bullock, Esquire Brannon, Brown, Haley, Robinson, and Bullock, P.A. 10 North Columbia Street Lake City, Florida 32056-1029 Saul Zalka, President Gulf Coast Foodservice, Inc. 8402 Lemon Road Port Richey, Florida 34668 United Pacific Insurance Company 4 Penn Center Plaza Philadelphia, Pennsylvania 19103 Phillip H. Hudson, III, Esquire One Biscayne Boulevard, Suite 3400 Miami, Florida 33131 Soneet R. Kapila, Chapter 7 Trustee Suite 2601 1 East Broward Boulevard Fort Lauderdale, Florida 33301 Geoffrey S. Aaronson, Esquire Suite 1050 200 South Biscayne Boulevard Miami, Florida 33131 Steven Turner, Esquire Suite 1204 51 Southwest 1st Avenue Miami, Florida 33131 Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, Plaza Leve 10 Tallahassee, Florida 32399-0810
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found Upon the suggestion of a special investigator with the Department of Insurance, a letter dated April 23, 1984, and signed by Northeast Regional Director Thomas P. Poston was written to the respondent at the address listed for him in the Tallahassee licensing office. This letter advised the respondent that the Department of Insurance and Treasurer had received complaints from Orange and Seminole Counties that he was recruiting clients during initial court appearances and that this appeared to be a violation of Section 648.44(b) of the Florida Statutes. The letter admonished respondent to immediately terminate such solicitation and advised him that any additional complaints would bring further action. The evidence does not establish whether respondent received this letter of April 23, 1984. The respondent was involved in another administrative proceeding with the petitioner, the facts of which were not brought into evidence in the instant proceeding. In the former proceeding, Case No. 84-L-3155, a Consent Order was entered which required respondent to pay an administrative fine of $1,000.00 and placed him on probation for a period of one year with the condition that he strictly adhere to the Florida Insurance Code. On or about December 4, 1984, Kenneth Martin was working on the property of Ray Dittmore. Respondent had previously, in July of 1984, written three bailbonds for Mr. Martin, all of which had been forfeited due to Mr. Martin's failure to appear in court. Upon learning of the whereabouts of Mr. Martin, respondent sent his employee, George Burfield, to Mr. Dittmore's property to apprehend Martin and return him to custody. Mr. Dittmore was present when Mr. Burfield arrived to take Martin into custody and felt that Mr. Burfield had misconducted himself during the apprehension process. After the incident, Dittmore telephoned respondent to complain about the conduct of his employee Burfield. Later that same day, Mr. Dittmore went to the Orange County Jail with his attorney, Warren Linsey, for the purpose of posting a cash bond for Kenneth Martin. There were prisoners confined in the Orange County Jail on December 4, 1984. While Mr. Dittmore was at the booking window counting his money, approximately $3,000.00, respondent approached him. Mr. Linsey recalls that respondent immediately introduced himself as a bondsman and offered his services. George Cox, also a bondsman, was present and recalls that when respondent saw Mr. Dittmore counting money at the window, respondent approached him, stated that he was a bail bondsman and informed him that Dittmore did not have to post the cash and could use him (respondent) instead. Mr. Dittmore recalls that after he told the deputy that he wished to bond out Kenneth Martin, respondent approached him at the window and asked him if he was the Dittmore he had spoken to earlier that day. Dittmore then recalls that respondent told him he didn't have to put up $3,000.00 because respondent could sell him a bond. According to Mr. Dittmore, respondent also told him that he wouldn't bond Martin out, that Dittmore was "dumb" for doing so and would end up losing his money. Respondent, who had previously written about $1,800.00 worth of bonds on Kenneth Martin and only received $216.00 as a remission for returning him to custody on December 4, 1984, recalls the incident at the Orange County Jail with Mr. Dittmore as follows. From his nearby position at the booking window, he could overhear and see that a "Dittmore" was there to post a bond for Kenneth Martin. After inquiring of Mr. Dittmore if he was the same Dittmore he had spoken with earlier, respondent introduced himself, apologized for what had happened earlier that day, begged him not to bail Martin out and told him he was foolish for doing so. He does recall later saying to George Cox that there were better ways to invest cash. Because respondent had previously lost money on Kenneth Martin, he had no intention of writing another bond on him on the same date he had been responsible for Martin's return to custody. Joseph Barrow was arrested on May 29, 1985, and was taken to the Seminole County Jail. At the time of his arrest, he had been drinking alcoholic beverages. Although subpoenaed to appear as a witness in this administrative hearing, Joseph Barrow was released and was not called upon to testify by the petitioner. According to sworn testimony taken on January 28, 1986, Joseph Barrow recalls that after he was fingerprinted at the Seminole County Jail on the evening of May 29, 1985, he called home to have his wife contact a bail bondsman to get him out of jail. He does not know if his family did contact a bondsman that night. However, he did speak with a bail bondsman that night at the jail, but could not remember his name. The description of the bondsman given in Joseph Barrow's statement of January 28, 1986, matched the respondent's physical appearance at the hearing. Joseph's wife, Michele Barrow, testified that her husband telephoned her the night he was arrested and asked her to find a bondsman. Neither the time of that telephone conversation nor the family's immediate response to that request were established at the hearing. On May 30, 1985, James Barrow, Joseph's brother; Donna Brino, Joseph's sister; and Michele Barrow, Joseph's wife, were at the Seminole County Jail for the purpose of getting Joseph out of jail. There were prisoners confined at the jail on that date. James recalls that, as he was standing in line to obtain information regarding his brother, respondent was also waiting in line and asked him why he was there. James replied that he was there to get his brother out of jail and asked respondent if he was a bondsman. Respondent stated that he was and asked James who his brother was. After James told respondent that his brother was Joe Barrow, respondent referred to a white piece of paper and replied that he had talked to Joe the previous night and had advised him to wait until the hearing that morning to see if his bond would be reduced. When James learned that he would need $250.00 to get his brother out of jail, he left the jail and went to the bank. When he returned to the jail, respondent approached him and asked him if he had gotten the $250.00. James recalls that when he replied that he had, respondent said "Well, give me the money, and I'll get your brother out of jail." James did not give respondent the money because his sister and sister-in-law who were standing behind respondent, were shaking their head "no." Joseph told James that he had spoken to a bondsman the night before, but could not remember the bondman's name. Michele Barrow recalls that as James was waiting in line at an information window, respondent approached him, asked if he needed a bondsman, and told James that he had spoken to Joseph the night before. At that point in time, Donna Brino, Joseph's sister, was on the telephone trying to contact a bondsman. Donna Brino did not hear the conversation which occurred between James Barrow and the respondent prior to James leaving the jail for the bank. She was aware that Joseph had spoken to a bondsman the night before and that he did not remember who that was. Because of her use of pronouns in lieu of names, Ms. Brino's description of the events which transpired on May 30th at the Seminole County Jail is unclear. She apparently telephoned Action Bail Bonds and left a message. While waiting for the message to be returned, she saw Bruce Moncrief, another bondsman, and spoke with him about writing her brother's bond. She stated that after she had already made arrangements with bondsman Bruce Moncrief, respondent told her she was stupid for using Moncrief and attempted to obtain the money from her brother James. Respondent testified that he was called to the Seminole County Jail by someone in the Barrow family on the evening of May 29, 1985. He went to the jail and spoke with Joseph Barrow. Upon learning that Joseph could not then afford to arrange for the $5,000.00 bail which had been set, respondent advised Joseph to wait until the next day when the amount of bail would be reduced. Respondent states that Joseph told him that his brother would get some money and would be contacting him. Respondent told Joseph that he would be at the jail the next day for the first appearances. Respondent also states that Joseph's brother, James, called him the next morning and he told James that it was better to wait until the first appearance and the reduction of the bond, that he would be at the jail for first appearances and that he would meet him there at that time. Respondent admits that he did approach James at the Seminole County Jail because he looked like his brother, Joseph, and said "I'm the one you're looking for. I talked to you this morning." After Joseph's bond was reduced to $2,500.00, respondent communicated this to James, and James left to go to the bank to get the money. At this point, respondent believed that he was going to write the bond, so he began preparing the papers and waited 30 to 45 minutes for James to return with the money. It was not until James returned from the bank that respondent learned he was not going to write Joseph's bond and that the family had obtained Mr. Moncrief instead.
Recommendation Based upon the findings of fact and conclusions of law recited herein, IT IS RECOMMENDED that the Amended Administrative Complaint against the respondent be DISMISSED. Respectfully submitted and entered this day of September, 1986. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0462 The proposed findings of fact submitted by the petitioner and the respondent have been carefully considered and are accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 6 and 7. Rejected, not supported by competent, substantial evidence. 8 and 9. Rejected. These ultimate conclusions are not supported by competent, substantial evidence. 11. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. Rejected, not supported by competent, substantial evidence. 19 and 20. Rejected as Unsupported by the evidence. Respondent - Respondent's proposals contain unnumbered and mixed factual findings and legal conclusions. Each of the topics included has been addressed in either the Findings of Fact or Conclusions of Law section of this Recommended Order, except: Page 2, first paragraph Rejected as irrelevant and immaterial. Page 4, last full paragraph Rejected, Unsupported and irrelevant in light of factual findings and legal conclusions. COPIES FURNISHED: Richard W. Thornburg, Esquire Bill Gunter Department of Insurance Insurance Commissioner Legal Division and Treasurer 413-B Larson Building Department of Insurance Tallahassee, Florida 32301 413-B Larson Building Tallahassee, Florida 32301 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603
Findings Of Fact Frank M. Murphy, Respondent, on May 26, 1977, filed a voluntary petition of bankruptcy in the U.S. District Court for the Northern District of Florida and was discharged November 4, 1977. At the time of the filing of the Administrative Complaint Respondent's license had lapsed by reason of his failure to renew, but the license was subsequently reinstated and is now current. Since his discharge by the bankruptcy court Respondent has continued doing work under his general contractor's license and no complaints against him have been received by Petitioner. Respondent's creditors whose debts were discharged in the bankruptcy proceedings continue to do business with Respondent on a cash basis. The First City Bank in Gainesville, Florida has, since his discharge in bankruptcy, extended Respondent credit in the amount of $3,000 and the account is current in accordance with the terms of the loan. The billings of the accountant who has done Respondent's account work since his discharge are current. Delores J. Mathys loaned Respondent in excess of $10,000 prior to his charge in bankruptcy and has loaned him additional money subsequent to his discharge. She is currently negotiating with him for the construction of a new home. Keller Building Products has, since Respondent's discharge in bankruptcy, extended Respondent credit to the extent of $5,000 and this account is current. Other suppliers have extended Respondent credit since his discharge and his accounts with them are curent. Subcontractors who have done work on projects for which Respondent is general contractor since his discharge have been paid. Other customers for whom Respondent has done work since his discharge are satisfied with his work and will continue to employ him as their contractor. Exhibit 2, a financial statement dated April 25, 1978 shows Respondent to have a current net worth in excess of $85,000, some $78,000 of which consists of real property owned jointly with his wife. Respondent's reputation in the business community in which he utilizes his certification is good.
