02-002925 Sam Jones, D/B/A Jones Farm vs. Southern Hay Sales, Inc., And Old Republic Surety Company Status: Closed Recommended Order on Wednesday, November 6, 2002.

Summary: Petitioner presents evidence sufficient to prove entitlement to pay of $1,241.95 for agricultural products.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAM JONES, d/b/a JONES FARM, )

)

Petitioner, )

)

vs. ) Case No. 02 - 29 25

)

SOUTHERN HAY SALES, INC., AND )

OLD REPUBLIC SURETY COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) held a Final Hearing in this case

on October 8, 2002, in Jasper, Florida.

APPEARANCES

For Petitioner: Sam Jones, pro se

Route 3, Bo x 172

Jasper, Florida 32052

For Respondent

Southern Hay

Sales, Inc.: Stephen C. Bullock, Esquire

116 Northwest Columbia Avenue

Lake City, Florida 32055

For Respondent

Old Republic

Surety Company: No Appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent Southern Hay Sales Inc.,

(Southern Hay) and its surety, Respondent Old Republic Surety

Company (Old Republic), are liable for funds due to Petitioner

from the sale of agricultural prod ucts.

PRELIMINARY STATEMENT

On or about June 6, 2002, Petitioner filed a complaint with

the Florida Department of Agriculture and Consumer Services

(Department). The complaint alleged that Southern Hay or its

surety, Old Republic, owed funds to Petitione r for hay purchased

by Southern Hay under the provisions of the Agricultural Bond

and License Law, Sections 604.15 through 604.34, Florida

Statutes.

Southern Hay filed an answer on or about June 24, 2002.

The answer denied the factual allegations of th e complaint.

On July 19, 2002, the Department referred this matter to

the Division of Administrative Hearings (DOAH). The case was

transferred to Judge Don W. Davis on October 7, 2002. A Notice

of Hearing issued scheduling the case for formal hearing on

October 8, 2002.

At the hearing, Petitioner presented the testimony of two

witnesses. Southern Hay presented the testimony of two

witnesses and two exhibits. Old Republic made no appearance.

A transcript of the hearing procedure was not filed with

D OAH. Southern Hay and Petitioner filed Proposed Findings of

Fact and Conclusions of Law which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a producer of agricultural products as

defined by Section 604.15(5), Florida Statutes. Petitioner

produces hay on a farm owned by Petitioner near Jasper, Florida.

2. Respondent Southern Hay is a dealer in agricultural

products as defined by Section 604.15(1), Florida Statutes.

3. Hay is a natural product o f a farm and, therefore, an

agricultural product as defined in Section 604.15(3), Florida

Statutes.

4. Old Republic is Southern Hay's surety.

5. Both Petitioner and Southern Hay have participated in a

business arrangement since at least 1997, whereby P etitioner

grew and sold to Southern Hay varying quantities of hay.

Petitioner would cut, process, and then store the hay in

trailers provided by Southern Hay. Petitioner would deem

Southern Hay to be indebted for a load of hay when a trailer of

hay was h auled away by Southern Hay personnel.

6. On January 16, 2002, Petitioner received a signed check

from Southern Hay. While there is a dispute as to who filled

out the check, resolution of that question is not relevant for

purposes of this matter. Suff ice it to say that Southern Hay's

check number 1183 was written in the amount of $2,596.45 and

dated January 16, 2002. Delivery of the check to Petitioner

satisfied all outstanding invoices for payment where hay had

been picked up, with the exception of P etitioner's invoice

number 302 documenting an obligation to Petitioner from Southern

Hay in the amount of $1,241.95 for hay. Southern Hay's

representative maintained at final hearing that an additional

check was issued on February 15, 2002, which included payment

for invoice number 302. No cancelled check was presented to

corroborate the testimony of Southern Hay's representative and

such omission, coupled with the general demeanor of the

representative, prevents the testimony of the representative,

Andre w Snider, from being credited in this regard.

7. Southern Hay and its surety, Old Republic, currently

owes Petitioner for an unpaid invoice in the amount of

$1,241.95.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction ov er this subject matter and the parties to this

action pursuant to Sections 120.569, 120.57(1), and 604.21(6),

Florida Statutes.

9. Section 604.15, Florida Statutes, contains the

following definitions in pertinent part:

(1) 'Dealer in agricultural prod ucts' means

any person, whether itinerant or domiciled

within this state, engaged within this state

in the business of purchasing, receiving, or

soliciting agricultural products from the

producer or her or his agent or

representative for resale or processi ng for

sale; acting as an agent for such producer

in the sale of agricultural products for the

account of the producer on a net return

basis; or acting as a negotiating broker

between the producer or her or his agent or

representative and the buyer.

* * *

(3) 'Agricultural products' means the

natural products of the farm, nursery,

grove, orchard, vineyard, garden, and apiary

(raw or manufactured); . . .

* * *

(5) 'Producer' means any producer of

agricultural products produced in the state.

1 0. Section 604.17, Florida Statutes, requires dealers in

agricultural products to have a license to engage in such

business.

11. Before dealers receive their licenses, they must

deliver to the Department a surety bond or a certificate of

deposit. The s urety bond or certificate of deposit secures

payment to producers for agricultural products sold to dealers.

Section 604.20(1), Florida Statutes.

12. Petitioner has met its burden of proving, by a

preponderance of the evidence, that Respondents are ind ebted to

Petitioner for unpaid invoices in the amount of $1,241.95.

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 re quiring Respondent Southern Hay

Sales, Inc., or its surety, Respondent Old Republic Surety

Company, to pay Petitioner for an unpaid invoice in the amount

of $1,241.95.

DONE AND ENTERED this 6th day of November, 2002, in

Tallahassee, Leon County, Florida.

_ __________________________________

DON W. DAVIS

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

www.doah.sta te.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of November, 2002.

COPIES FURNISHED :

Brenda D. Hyatt, Bureau Chief

Department of Agriculture

541 East Tennessee Street

India Building

Tallahassee, Florida 32308

Ri chard Ditschler, General Counsel

Department of Agriculture

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Michael A. Jankowski

Old Republic Surety Company

Post Office Box 1635

Milwaukee, Wisconsin 53201

Sam Jones

Jones Farm

6799 SR 6 W est

Jasper, Florida 32052

Stephen C. Bullock, Esquire

116 Northwest Columbia Avenue

Lake City, Florida 32055

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.