09-004719 Crown Harvest Produce Sales, Llc vs. American Growers, Inc.; And Lincoln General Insurance Company Status: Closed Recommended Order on Tuesday, May 18, 2010.

Summary: The parties stipulated to the entry of a recommended order requiring payment of $117,982.90.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CROWN HARVEST PRODUCE SALES, )

LLC, )

)

Petitioner, )

)

vs. ) Case Nos. 09-4719

) 09-4720

AMERICAN GROWERS, INC.; AND LINCOLN GENERAL INSURANCE )

COMPANY, )

)

)

Respondents. )

)

RECOMMENDED ORDER

On May 4, 2010, the parties stipulated to the issuance of a

recommended order by Administrative Law Judge Jeff B. Clark of

the Division of Administrative Hearings. The Stipulation for

Entry of Recommended Order was filed on May 4, 2010.

APPEARANCES

For Petitioner Crown Harvest Produce Sales, LLC:

Katy Koestner Esquivel, Esquire

Meuers Law Firm, P.L.

5395 Park Central Court

Naples, Florida 34109

For Respondent American Growers:

Glenn C. Thomason, Registered Agent

American Growers, Inc.

Post Office Box 1207

Loxahatchee, Florida 33470

For Respondent Lincoln General Insurance Company

No Appearance

STATEMENT OF THE ISSUE

The issue is whether the claims of $98,935.20 and

$19,147.70, filed by Petitioner under the Agricultural Bond and

PRELIMINARY STATEMENT

By Amended Complaint served on July 9, 2009, Petitioner,

Crown Harvest Produce Sales, LLC (Petitioner), alleged that

Respondent, American Growers, Inc. (American Growers), owed

$19,147.70 for the sale of strawberries. By a second Amended

Complaint served on July 9, 2009, Petitioner alleged that

American Growers owed $98,935.20 for the sale of strawberries.

In both cases, the allegations were denied by American Growers

in its responsive pleadings, which also requested a formal

hearing.

On August 27, 2009, the matters were forwarded to the

Division of Administrative Hearings and assigned DOAH Case

Nos. 09-4719 and 09-4720, respectively.

On August 27, 2009, Initial Orders were sent to both

parties requesting, inter alia , mutually convenient dates for

the final hearing. Based on the unilateral responses, on

September 28, 2009, an Order of Consolidation and a Notice of

Hearing were issued, scheduling the final hearing in these

consolidated cases for November 2 and 3, 2009, in Ft. Myers,

Florida.

On February 12, 2010, this cause was continued and

rescheduled for final hearing on May 6 and 7, 2010, after the

approval of the withdrawal of American Growers' counsel.

On April 15, 2010, Petitioner's Unilateral Pre-Hearing

Statement was filed as directed in the Supplemental Order of

Pre-Hearing Instructions issued on February 12, 2010; American

Growers did not file a response to the supplemental order.

On May 4, 2010, the parties filed a Stipulation for Entry

of Recommended Order in lieu of the final hearing and waiving

the parties' right to offer testimony and evidence. On May 5,

2010, the final hearing in this cause was cancelled.

All statutory references are to Florida Statutes (2008),

unless otherwise noted.

FINDINGS OF FACT

1. At all material times, Petitioner has been a producer

of agricultural products located in Plant City, Florida.

2. At all material times, American Growers has been a

dealer in agricultural products.

3. Respondent Lincoln General Insurance Company, as

surety, issued a bond to American Growers, as principal.

4. American Growers is licensed by the Department of

Agriculture and Consumer Services ("DACS").

5. Between December 16, 2008, and February 4, 2009,

Petitioner sold strawberries to American Growers, each sale

being accompanied by a Passing and Bill of Lading.

6. Petitioner sent an Invoice for each shipment, and

payment was due in full following receipt of the Invoice.

7. Partial payments have been made on some of the

invoices, and as of the date of this Recommended Order, the

amount that remains unpaid by American Growers to Petitioner is

$117,982.90, comprising:

Invoice No. Invoice Date Amount Balance Due

1 0 3 8 9 4 1 2 / 1 6 / 0 8 $7,419.00 $ 1 , 2 9 6 . 0 0

1 0 3 9 5 2 1 2 / 2 2 / 0 8 $18,370.80 $ 1 , 9 4 4 . 0 0

1 0 3 9 5 3 1 2 / 2 3 / 0 8 $3,123.60 $ 6 4 8 . 0 0

1 9 3 9 5 5 1 2 / 2 6 / 0 8 $8,164.80 $ 1 , 7 2 8 . 0 0

1 0 3 9 8 4 1 2 / 2 8 / 0 8 $28,764.40 $ 2 8 , 7 6 4 . 4 0

1 0 4 0 7 6 1 2 / 3 1 / 0 8 $17,236.80 $ 1 7 , 2 3 6 . 8 0

1 0 4 0 7 7 1 / 5 / 0 9 $17,658.00 $ 1 7 , 6 5 8 . 0 0

1 0 4 1 8 9 1 / 5 / 0 9 $1,320.90 $ 1 , 3 2 0 . 9 0

1 0 4 3 8 6 1 / 2 0 / 0 9 $16,480.80 $ 1 6 , 4 8 0 . 8 0

1 0 4 5 1 7 1 / 2 9 / 0 9 $17,449.20 $ 1 7 , 4 4 9 . 2 0

1 0 4 4 9 6 2 / 4 / 0 9 $13,456.80 $ 1 3 , 4 5 6 . 8 0

TOTAL $117,982.90

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

9. Dealers of agricultural products are licensed by DACS.

§ 604.17, Fla. Stat.

10. Dealers must post a bond or other security as a

pre-condition to licensure, insuring payment to producers for

all agricultural products purchased. §§ 604.19 and 604.20, Fla.

Stat.

11. The strawberries in question are agricultural

products. § 604.15(3), Fla. Stat.

12. Any person claiming to have been damaged by the breach

of the conditions of a bond given by a licensed agricultural

dealer, such as Petitioner, may file a complaint against the

dealer and its surety. § 604.21, Fla. Stat.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Agriculture and Consumer

Services enter a final order requiring Respondent, American

Growers, Inc., and/or its surety, Respondent, Lincoln General

Insurance Company, to pay Petitioner, Crown Harvest Produce

Sales, LLC, the total amount of $117,982.90.

DONE AND ENTERED this 18th day of May, 2010, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of May, 2010.

COPIES FURNISHED :

Honorable Charles H. Bronson

Commissioner of Agriculture and

Consumer Services

The Capital, Plaza Level 10

Tallahassee, Florida 32399-0810

Richard Ditschler, General Counsel

Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399-0800

Christopher E. Green, Esquire

Department of Agriculture and

Consumer Services

Office of Citrus License and Bond

Mayo Building, Mail Station 38

Tallahassee, Florida 32399-0800

Glenn Thomason, President

American Growers, Inc.

14888 Horseshoe Trace

Wellington, Florida 33414

Katy Koestner Esquivel, Esquire

Meuers Law Firm, P.L.

5395 Park Central Court

Naples, Florida 34109

Renee Herder

Surety Bond Claims

Lincoln General Insurance Company

4902 Eisenhower Boulevard, Suite 155

Tampa, Florida 33634

Glenn C. Thomason, Registered Agent

American Growers, Inc.

Post Office Box 1207

Loxahatchee, Florida 33470

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.