02-001443 William E. Gable, Jr., D/B/A Gable Enterprises vs. Ynnor Distribution Group, Inc., And Fidelity Deposit Company Of Maryland Status: Closed Recommended Order on Wednesday, November 27, 2002.

Summary: Petitioner proved his claim for $13,430.02. Respondent did not appear and was not represented.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM E. GABLE, JR., d/b/a )

GABLE ENTERPRISES, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1443

)

YNNOR DISTRIBUTION GROUP, INC., )

AND FIDELITY DEPOSIT COMPANY OF )

MARYLAND, )

)

Respondents. )

)

RECOMMENDED ORDER

A formal hearing was held pursuant to notice in the

above - styled case by Stephen F. Dean, assigned Administrative

Law Judge of the Division of Administrative Hearings, on

June 21, 200 2, in Tallahassee, Florida.

APPEARANCES

For Petitioner: William E. Gable, Jr.

Gable Enterprises

6511 Bradley Road

Marianna, Florida 32448

For Respondent: No appearance

STATEMENT OF THE ISSUES

Does Respondent, Ynnor Distribution Group, Inc., ow e

Petitioner, William E. Gable, Jr., d/b/a Gable Enterprises,

$13,430.02 for the sale of four shipments of watermelons ?

PRELIMINARY STATEMENT

Petitioner filed a Producer Complaint with the Department

of Agriculture and Consumer Services (Department) alle ging that

Ynnor Distribution Group, Inc. (Ynnor), had failed to pay for

four shipments of watermelons sold to Ynnor. The Department

gave notice to Ynnor and Fidelity Deposit Company of Maryland,

as surety, of the complaint and amount.

Ynnor filed a respon se in which it acknowledged the debt of

$13,430.02, but asserts William E. Gable, Jr., owed Ynnor

$3,117.18. Ynnor disputes the watermelons were from Florida.

Mr. Gable responded to Ynnor's counterclaims. Mr. Gable

demanded strict proof of the $3,117.18 claimed by Ynnor.

Because of the factual dispute, the Department forwarded

the case to the Division of Administrative Hearings on or about

April 9, 2002. An Initial Order was sent to the parties on

April 15, 2002. Thereafter, the case was noticed for hea ring on

June 21, 2002, and heard, as noticed. At hearing, only

Mr. Gable appeared.

Mr. Gable testified and introduced his records as Exhibits

numbered 1, 2, 3, and 4. Mr. Gable introduced his records of

account as a summary of his testimony regard ing the amounts

owed, as reflected in Exhibits numbered 1, 2, 3 and 4.

Subsequent to the hearing, Petitioner did not file any proposed

findings, but did send in two letters reflecting offers by Ynnor

to settle for $4,500.00, which Petitioner rejected. Th ere was

no further action on the account.

FINDINGS OF FACT

1. On July 17, 2001, Mr. Gable sold Ynnor 42,330 pounds of

watermelon for $3,128.19. (Exhibit 1)

2. On July 17, 2001, Mr. Gable sold Ynnor 42,740 pounds of

watermelon for $3,150.70. (Exhibit 2 )

3. On July 19, 2001, Mr. Gable sold Ynnor 46,283 pounds of

watermelon for $4,165.47. (Exhibit 3)

4. On July 24, 2001, Mr. Gable sold Ynnor 44,540 pounds of

watermelon for $2,985.70. (Exhibit 4)

5. The total amount Ynnor owed Mr. Gable was $13,430 .02.

(Exhibit 4)

6. There was no payment on the account by Ynnor.

7. Mr. Gable called the recipient of the watermelons.

They were all received in good shape and payment for the

watermelons was made by the recipient to Ynnor.

8. Ynnor did not attend the hearing. No evidence was

received on the amount Ynnor alleged as a counterclaim.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter pursuant to

Sections 120.57 and 604.21, Florida Sta tutes .

10. Petitioner, in this cause, introduced testimony and

the records of four transactions with Ynnor establishing that

Ynnor owed Petitioner a total of $13,430.02. Ynnor did not

appear and presented no evidence on the basis and amount of the

counte rclaim. Not only did Petitioner prove the amount of the

claim, but Ynnor admitted the indebtedness in that amount in its

pleadings.

11. Section 604.21, Florida Statutes, provides:

(1) Any person claiming herself or

himself to be damaged by any breach of the

conditions of a bond or certificate of

deposit assignment or agreement given by a

licensed dealer in agricultural products as

hereinbefore provided may enter complaint

thereof against the dealer and against the

surety, if any, to the department, whi ch

complaint shall be a written statement of

the facts constituting the complaint. Such

complaint shall be filed within 6 months

from the date of sale in instances involving

direct sales or from the date on which the

agricultural product was received by t he

dealer in agricultural products, as agent,

to be sold for the producer. No complaint

shall be filed pursuant to this section

unless the transactions involved total at

least $250 and occurred in a single license

year.

(2) Upon the filing of such comp laint in

the manner herein provided, the department

shall investigate the matters complained of;

whereupon, if, in the opinion of the

department, the facts contained in the

complaint warrant such action, the

department shall send to the dealer in

question, by certified mail, notice of the

filing of the complaint. Such notice shall

be accompanied by a true copy of the

complaint. A copy of such notice and

complaint shall also be sent to the surety

company, if any, that provided the bond for

the dealer, whic h surety company shall

become party to the action. Such notice of

the complaint shall inform the dealer of a

reasonable time within which to answer the

complaint by advising the department in

writing that the allegations in the

complaint are admitted or d enied or that the

complaint has been satisfied. Such notice

shall also inform the dealer and the surety,

if any, of a right to a hearing on the

complaint, if requested.

(3) If the dealer admits the allegations

of the complaint but fails to satisfy same

within the time fixed by the department, the

department shall thereupon order payment by

the dealer of the amount found owed.

(4) If the dealer, in her or his answer,

denies the allegations of the complaint and

waives a hearing, the department may orde r a

hearing or enter an order based on the facts

and circumstances set forth in the complaint

and the respondent's answer thereto. If the

department determines the complaint has not

been established, the order shall, among

other things, dismiss the procee dings. If

the department determines that the

allegations of the complaint have been

established, it shall enter its findings of

fact accordingly and thereupon enter its

order adjudicating the amount of

indebtedness due to be paid by the dealer to

the comp lainant.

(5) Any order entered by the department

pursuant to this section shall become final

14 days after issue if neither the

department nor a party whose material

interest is affected by the order requests a

hearing on the order within 14 days

follow ing the date of issue.

(6) Any party whose material interest is

affected by a proceeding pursuant to this

section shall be granted a hearing upon

request. Such hearing shall be conducted

pursuant to chapter 120. The order of the

department, when issue d pursuant to the

recommended order of an administrative law

judge, shall be final upon issuance.

(7) Any indebtedness set forth in a

departmental order against a dealer shall be

paid by the dealer within 15 days after such

order becomes final.

(8) U pon the failure by a dealer to

comply with an order of the department

directing payment, the department shall, in

instances involving bonds, call upon the

surety company to pay over to the department

out of the bond posted by the surety for

such dealer or, in instances involving

certificates of deposit, call upon the

financial institution issuing such

certificate to pay over to the department

out of the certificate under the conditions

of the assignment or agreement, the amount

called for in the order of th e department,

not exceeding the amount of the bond or the

principal of the certificate of deposit. If

the bond or the principal of the certificate

of deposit is insufficient to pay in full

the amount due each complainant as set forth

in the order of the d epartment, the

department shall distribute the proceeds pro

rata among such complainants. The proceeds

from a bond or the principal from a

certificate of deposit shall be paid

directly to the department to be distributed

by it to successful complainants, except the

accrued interest on a certificate of deposit

shall be paid to the dealer. Such funds

shall be considered trust funds in the hands

of the department for the exclusive purpose

of satisfying duly established complaints.

Payments made to the depar tment pursuant to

this section shall be considered payments

made upon demand and may not be considered

voluntary payments.

(9) Nothing in this section may be

construed as relieving a surety company from

responsibility for payment on properly

established complaints against dealers

involved in a federal bankruptcy proceeding

and against whom the department is

prohibited from entering an order.

(10) Upon the failure of a surety company

to comply with a demand for payment of the

proceeds on a bond for a d ealer in

agricultural products, a complainant who is

entitled to such proceeds, in total or in

part, may, within a reasonable time, file in

the circuit court a petition or complaint

setting forth the administrative proceeding

before the department and ask for final

order of the court directing the surety

company to pay the bond proceeds to the

department for distribution to the

complainants. If in such suit the

complainant is successful and the court

affirms the demand of the department for

payment, the co mplainant shall be awarded

all court costs incurred therein and also a

reasonable attorney's fee to be fixed and

collected as part of the costs of the suit.

In lieu of such suit, the department may

enforce its final agency action in the

manner provided in s. 120.69.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Department of Agriculture and Consumer

Services enter its final order finding that Respondent, Ynnor

Distribution Group, Inc., owes Pe titioner, William E. Gable, the

amount of $13,430.02.

DONE AND ENTERED this 27th day of November, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearin gs

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of November, 2002.

COPIES FURNISHED :

Kathy Alves

Fidelity & Deposit Company of Maryland

Post Office Box 87

Baltimore, Maryland 21203

Ronald S. Booth, Sr.

Ynnor Distribution Group, Inc.

Post Office Box 1202

Winter Haven, Florida 33882 - 1202

William E. Gable, Jr.

Gable Enterprises

6511 Bradley Road

Marianna, Florida 32448

Brenda D. Hyatt, Bureau Chief

Bureau of License and Bond

Department of Agriculture and

Consumer Services

Mayo Building

407 South Calhoun Street, Mail Stop 38

Tallahassee, Florida 32399 - 0800

NOT ICE 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.