01-003321 Brooks Tropical, Inc. vs. Small Indian Corporation And Cumberland Casualty And Surety Company Status: Closed Recommended Order on Monday, November 5, 2001.

Summary: Petitioner entitled to amount unpaid by dealer for agricultural products, except for invoice for which the complaint was untimely filed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROOKS TROPICALS , INC., )

)

Petitioner, )

)

vs. ) Case No. 01 - 3320

)

SMALL INDIAN CORPORATION and )

CUMBERLAND CASUALTY AND )

SURETY COMPANY, )

)

Respondents. )

______________ ________________)

BROOKS TROPICAL S , INC., )

)

Petitioner, )

)

vs. ) Case No. 01 - 3321

)

SMALL INDIAN CORPORATION and )

CUMBERLAND CASUALTY AND )

SURETY COMPANY, )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

The parties presented these cases by Stipulation to Robert

E. Meale, Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Carolann Swanson

General Counsel

Brooks Tropical, Inc.

Post Office Box 90016 0

Homestead, Florida 33090

For Respondent Small Indian Corporation:

W. Sam Holland

Hinshaw and Culbertson

200 South Biscayne Boulevard

Suite 800

First Union Financial Center

Miami, Florida 33131

For Respondent Cumberland Cas ualty and Surety Company:

no appearance

STATEMENT OF THE ISSUE

The issue is whether, as provided by the relevant statutes,

Respondents owe Petitioner money for the sale of agricultural

products.

PRELIMINARY STATEMENT

By Amended Complaint served June 14, 2001, Petitioner

alleged that Respondents owed it $1190 for the sale of avocados

on November 25, 2001. This complaint commenced DOAH Case

No. 01 - 3320.

By Amended Complaint served June 14, 2001, Petitioner

alleged that Respondents owed it $54,519.25 for the sale of

avocados, limes, and papayas from November 28, 2000, through

February 5, 2001. This complaint commenced DOAH Case No.

01 - 3321.

By responsive pleadings served July 18, 2001, Respondent

Small Indian Corporation requested a formal hearing.

During the prehearing conference conducted by telephone on

October 11, 2001, the parties agreed to present the case by

stipulation. Accordingly, on October 12, 2001, the parties

filed a Stipulation, which is the source of all of the factual

findings conta ined in this Recommended Order.

FINDINGS OF FACT

1. At all material times, Petitioner, which is located in

Homestead, Florida, has been a producer of agricultural

products. At all material times, Respondent Small Indian

Corporation (Respondent) has been a dealer in agricultural

products.

2. Respondent Cumberland Casualty and Surety Company, as

surety (Surety), issued a bond to Respondent, as principal, in

the amount of $27,600 for the period, November 26, 1999, through

November 25, 2000. Surety also issue d a bond to Respondent in

the same amount for the following bond year.

3. During the periods covered by this case, Petitioner

sold to Respondent numerous avocados, limes, and papayas. The

shipments were timely and conformed in quality and quantity to

the o rders. Petitioner timely issued invoices to Respondent for

the sales of these agricultural products, but Respondent never

paid any portion of these invoices.

4. On May 25, 2001, Petitioner filed a complaint with the

Department of Agriculture and Consumer S ervices (Department) for

the period from November 22, 2000, through February 5, 2001.

5. The Department required Petitioner to file separate

complaints by bond year. Thus, Petitioner filed an amended

complaint for $1190 for the bond year ending November 25, 2000,

and an amended complaint for $54,591.25 for the bond year ending

November 25, 2001. The date of the lone invoice within the bond

year ending November 25, 2000, was November 22, 2000. The

amended complaint concerning the bond year ending Novemb er 25,

2000, commenced DOAH Case No. 01 - 3320, and the amended complaint

concerning the bond year ending November 25, 2001, commenced

DOAH Case No. 01 - 3321. The allegations as to dates and amounts

of invoices are all correct.

CONCLUSIONS OF LAW

6. The Divis ion of Administrative Hearings has

jurisdiction over the subject matter. Sections 120.57(1) and

604.21(6), Florida Statutes.

7. Section 604.21(1), Florida Statutes requires that all

complaints against agricultural dealers, such as Respondent, and

their sur eties, such as Surety, must be filed within six months

from the date of the sale.

8. The complaint filed on May 25, 2001, was timely as to

all invoices except the sole invoice that is the subject of DOAH

Case No. 01 - 3320 and totals $1190. The six - month fili ng

deadline for this invoice expired on May 22, 2001. Thus,

Petitioner has proved its entitlement only to the $54,591.25

that is the total of the invoices that are the subject of DOAH

Case No. 01 - 3321.

RECOMMENDATION

It is

RECOMMENDED that the Departme nt of Agriculture and Consumer

Services enter a final order dismissing the amended complaint in

DOAH Case No. 01 - 3320 and finding Respondent liable to

Petitioner in DOAH Case No. 01 - 3321 for the sum of $54,591.25.

DONE AND ENTERED this 5th day of November , 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrativ e Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

F ax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of November, 2001.

CO PIES FURNISHED:

Honorable Charles H. Bronson

Commissioner of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Richard Ditschler

General Counsel

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Brenda D. Hyatt

Bureau Chief

Bureau of License and Bond

Department of Agriculture

514 East Tennessee Street

India Building

Tallahassee, Florida 32308

Carolann Swanson

Gener al Counsel

Brooks Tropical, Inc.

Post Office Box 900160

Homestead, Florida 33090

W. Sam Holland

Hinshaw and Culbertson

200 South Biscayne Boulevard

Suite 800

First Union Financial Center

Miami, Florida 33131

Deborah A. Meek

Cumberland Casualty and Su rety Company

4311 West Waters Avenue, Suite 401

Tampa, Florida 33614

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 recommend ed order must be filed with the agency that

will issue the final order in this case.