09-004306 Edward L. Myrick, D/B/A Edward L. Myrick Produce vs. Sun-Rich America, Inc., D/B/A Royal Palm Produce, And Capitol Insurance Companies, As Surety Status: Closed Recommended Order on Monday, November 16, 2009.

Summary: Petitioner demonstrated that Respondent was indebted to it in the amount claimed in one case, but Petitioner did not pursue the claimed amount in the second case. Recommend payment of proven indebted amount, plus filing fee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD L. MYRICK, d/b/a EDWARD )

L. MYRICK PRODUCE, )

)

Petitioner, )

)

vs. ) Case Nos. 09-4306

) 09-4606

SUN-RICH AMERICA, INC., d/b/a )

ROYAL PALM PRODUCE, AND CAPITOL )

INSURANCE COMPANIES, AS SURETY, )

)

Respondents. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 26, 2009, by video teleconference with connecting

sites in Lauderdale Lakes and Tallahassee, Florida, before

Errol H. Powell, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Edward L. Myrick, Jr., Esquire

1255 West Atlantic Boulevard, Suite 314

Pompano Beach, Florida 30069

For Respondent: No Appearance

STATEMENT OF THE ISSUES

The issues for determination are whether Respondents are

indebted to Petitioner in the amount of $4,273.15 for

agriculture products, plus a $50.00 filing fee, totaling

$4,323.15; and whether Respondents are indebted to Petitioner in

the amount of $551.00 for agriculture products, plus a $50.00

filing fee, totaling $601.00.

PRELIMINARY STATEMENT

Edward L. Myrick, d/b/a Edward L. Myrick Produce,

hereinafter Myrick Produce, filed an Amended Claim before the

Florida Department of Agriculture and Consumer Services,

hereinafter Department, against Sun-Rich America, Inc., d/b/a

Royal Palm Produce, hereinafter Royal Palm Produce, for

indebtedness due to the failure of Royal Palm Produce to pay

Myrick Produce for agriculture products sold to Royal Palm

Produce. Royal Palm Produce filed a response admitting that the

claim by Myrick Produce in the amount of $4,273.15, was valid,

but that it had made partial payment to Myrick Produce and was

making periodic payments on the balance; and filed a response

admitting that the claim by Myrick Produce in the amount of

$551.00, was valid, but that the indebtedness had been

satisfied. However, Myrick Produce responded that no payments

had been received and that the debts remained outstanding. On

August 14 and 20, 2009, respectively, the Department referred

these matters to the Division of Administrative Hearings.

At hearing, Myrick Produce presented the testimony of one

witness and entered one composite exhibit (Petitioner's

Composite Exhibit numbered 1) into evidence. No one

representing Royal Palm Produce appeared, no witnesses

testified, and no exhibits were entered into evidence.

No transcript of the final hearing was ordered. Myrick

Produce chose not to file a post-hearing submission.

FINDINGS OF FACT

1. No dispute exists that, at all times material hereto,

Myrick Produce was a producer of agriculture products.

2. No dispute exists that, at all times material hereto,

Royal Palm Produce was a dealer in agriculture products.

3. No dispute exists that, at all times material hereto,

Royal Palm Produce purchased agriculture products from Myrick

Produce.

4. Edward L. Myrick testified on behalf of Myrick Produce.

He is the sole owner of Myrick Produce.

5. No one testified on behalf of Royal Palm Produce.

Case No. 09-4306

6. Myrick Produce had an invoice and a corresponding

signed bill of lading for each order of Florida produce that was

sold to Royal Palm Produce by Myrick Produce. Each invoice

provides, among other things, payment terms of 21 days.

7. The bill of lading for each order indicates, among

other things, that the produce was received in good condition

and that the quantity was verified.

8. Invoice No. 124814 dated January 15, 2009, reflects,

among other things, 60 cartons of choice eggplant at a cost of

$381.00. Choice eggplant was at a cost of $6.35 per carton.

9. Invoice No. 124994 dated January 21, 2009, reflects,

among other things, 60 cartons of choice eggplant at a cost of

$381.00.

10. Invoice No. 125139 dated January 27, 2009, reflects,

among other things, 27 cartons of choice eggplant at a cost of

$171.45.

11. Invoice No. 125263 dated January 30, 2009, reflects,

among other things, 60 cartons of choice eggplant at a cost of

$381.00.

12. Invoice No. 125383 dated February 3, 2009, reflects,

among other things, 60 cartons of choice eggplant at a cost of

$501.00. Choice eggplant increased from $6.35 per carton to

$8.35 per carton.

13. Invoice No. 125618 dated February 10, 2009, reflects,

among other things, 60 cartons of choice eggplant at a cost of

$501.00.

14. Invoice No. 126132 reflects, among other things, 60

cartons of choice eggplant at a cost of $441.00. Choice

eggplant decreased from $8.35 per carton to $7.35 per carton.

15. As to the date of the Invoice No. 126132, the invoice

only reflects the month of February; however, the corresponding

Bill of Lading reflects the same invoice number, the same

agriculture produce, and the date of February 19, 2009.

Consequently, an inference is drawn and a finding of fact is

made that the date of the invoice is February 19, 2009.

16. Invoice No. 126570 dated March 3, without a year,

reflects, among other things, two cartons of long hot pepper at

a cost of $48.70. Long hot pepper was $24.35 per carton.

17. As to the date of Invoice No. 126570, the

corresponding Bill of Lading reflects the same invoice number,

the same agriculture produce, and a date of March 3, 2009.

Consequently, an inference is drawn and a finding of fact is

made that the date of the invoice is March 3, 2009.

18. Invoice No. 128289 reflects, among other things, 60

cartons of choice eggplant at a cost of $501.00. Choice

eggplant increased from $7.35 per carton to $8.35 per carton.

19. The corresponding Bill of Lading reflects a signature

bill of lading reflects a signature as the “Shipper.”

Furthermore, the answer by Royal Palm Produce indicates that the

claim by Myrick Produce is admitted and valid. Consequently, an

inference is drawn and a finding of fact is made that the

signature as the “Shipper” was a mistake and that the signature

is the “Carrier.”

20. Invoice No. 128378 reflects, among other things, 50

cartons of large cucumber at a cost of $267.50; 50 cartons of

select cucumber at a cost of $317.50; and 60 cartons of choice

eggplant at a cost of $381.00. Large cucumber was at a cost of

$5.35 per carton. Select cucumber was at a cost of $6.35 per

carton. Choice eggplant decreased from $7.35 per carton to

$6.35 per carton.

21. Myrick Produce’s total claimed indebtedness for

agriculture produce is $4,273.15.

22. Royal Palm Produce admits that Myrick Produce’s claim

is valid. 1

23. However, Royal Palm Produce asserts that it has

partially satisfied and is making payments toward the

indebtedness. 2 No evidence was presented to support this

assertion.

24. Royal Palm Produce has not satisfied any amount of the

debt owed. Further, Royal Palm Produce is not making any

payments on the debt owed.

25. Royal Palm Produce is indebted to Myrick Produce in

the total amount of $4,273.15.

26. Additionally, Myrick Produce is claiming $50.00 for

filing the Amended Claim with the Department.

27. No appearance was made by the casualty company,

Capitol Insurance Companies.

Case No. 09-4606

28. Myrick Produce is not pursuing any claim against Royal

Palm Produce in this case.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto, pursuant to Sections 120.569 and 604.21,

Florida Statutes (2009), and Subsection 120.57(1), Florida

Statutes (2009).

30. Dealers of agricultural products are licensed by the

Department. § 604.17, Fla. Stat. (2008). Dealers must post a

bond or other security as a precondition to licensure, ensuring

payment to producers for all agricultural products purchased.

§§ 604.19 and 604.20, Fla. Stat. (2008).

31. These proceedings are de novo . § 120.57(1)(k), Fla.

Stat. (2009).

32. The standard of proof is preponderance of the

evidence. § 120.57(1)(j), Fla. Stat. (2009).

33. The general rule is that "the burden of proof, apart

from statute, is on the party asserting the affirmative of an

issue before an administrative tribunal." Florida Department of

Transportation v. J. W. C. Company, Inc. , 396 So. 2d 778, 788

(Fla. 1st DCA 1981). The burden of proof is upon Myrick Produce

to show by a preponderance of the evidence that it is entitled

to the relief sought.

34. Myrick Produce has met its burden. The evidence

demonstrates that Royal Palm Produce is indebted to Myrick

Produce in the total amount of $4,273.15 for agriculture produce

and that Royal Palm Produce has not satisfied any of the debt.

35. Hence, Royal Palm Produce is obligated to pay the

total indebtedness to Myrick Produce.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Department of Agriculture and

Consumer Services enter a final order in Case No. 09-4306

finding that Sun-Rich America, Inc., d/b/a Royal Palm Produce is

indebted to Edward L. Myrick, d/b/a Edward L. Myrick Produce in

the amount of $4,273.15 and ordering the payment of same, plus a

filing fee of $50.00 for filing the Amended Claim; and in Case

No. 09-4606 dismissing the Amended Claim.

DONE AND ENTERED this 16th day of November, 2009, in

Tallahassee, Leon County, Florida.

__________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of November, 2009.

ENDNOTES

1/ Stated in Royal Palm Produce’s Answer.

2/ Ibid.

COPIES FURNISHED:

Edward L. Myrick, Jr., Esquire

1255 West Atlantic Boulevard, Suite 314

Pompano Beach, Florida 30069

Ron A. Wills

Capitol Insurance Companies

Claims Department

1600 Aspen Commons

Middleton, Wisconsin 53562-4772

Christopher E. Green, Esquire

Department of Agriculture and

Consumer Services

Office of Citrus License and Bond

Mayo Building, Mail Stop 38

Tallahassee, Florida 32399-0800

William M. Neece, Jr.

Sun-Rich America, Inc., d/b/a

Royal Palm Produce

19332 Stonebrook

Weston, Florida 33332

Richard Ditschler, General Counsel

Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399-0800

Honorable Charles H. Bronson

Commissioner of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399-0810

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.