Senate Bill sb1780c1

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2005                           CS for SB 1780

    By the Committee on Judiciary; and Senator Smith





    590-2331-05

  1                      A bill to be entitled

  2         An act relating to dealers in agricultural

  3         products; amending s. 604.15, F.S.; revising

  4         definitions; expanding the list of products

  5         covered by the law; defining the terms

  6         "negotiating broker" and "producer's agent";

  7         amending s. 604.16, F.S.; revising exceptions

  8         to provisions regulating dealers; amending s.

  9         604.18, F.S., relating to applications for

10         dealer licensure; requiring dealers to provide

11         mailing and location address information;

12         requiring dealers to provide certain

13         information relating to the dollar amount of

14         business done or to be done; amending s.

15         604.19, F.S.; providing requirements relating

16         to cancellation of a bond or certificate of

17         deposit; increasing license fees and delinquent

18         renewal penalties; amending s. 604.20, F.S.;

19         providing a calculation for the amount of a

20         bond or certificate of deposit; adding

21         requirements relating to bond or certificate of

22         deposit assignment or agreement; authorizing

23         the Department of Agriculture and Consumer

24         Services to issue a conditional license under

25         certain conditions; amending s. 604.21, F.S.;

26         increasing the minimum claim amount and

27         requiring a complaint filing fee; providing

28         requirements for submission of a complaint and

29         payment for multiple claims; authorizing a

30         dealer in agricultural products to file a

31         complaint against another dealer in

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1         agricultural products; limiting the time a

 2         complaint may be held in abeyance; authorizing

 3         review of a final order; clarifying

 4         distribution of bond or certificate of deposit

 5         proceeds; amending s. 604.22, F.S.; revising

 6         recordkeeping requirements of licensees;

 7         clarifying application of provisions; amending

 8         ss. 604.23 and 604.25, F.S.; clarifying

 9         application of provisions; amending s. 604.30,

10         F.S.; clarifying that a violator of provisions

11         regulating dealers in agricultural products may

12         be a person, partnership, corporation, or other

13         business entity; increasing the maximum

14         administrative fine and the fine for continued

15         violation of an administrative order; providing

16         an appropriation and authorizing additional

17         positions; providing an effective date.

18  

19  Be It Enacted by the Legislature of the State of Florida:

20  

21         Section 1.  Section 604.15, Florida Statutes, is

22  amended to read:

23         604.15  Dealers in agricultural products;

24  definitions.--For the purpose of ss. 604.15-604.34, the

25  following words and terms, when used, shall be construed to

26  mean:

27         (1)(3)  "Agricultural products" means the natural

28  products of the farm, nursery, grove, orchard, vineyard,

29  garden, and apiary (raw or manufactured); sod; tropical

30  foliage; horticulture; hay; livestock; milk and milk products;

31  poultry and poultry products; the fruit of the saw palmetto

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  (meaning the fruit of the Serenoa repens); and limes (meaning

 2  the fruit Citrus aurantifolia, variety Persian, Tahiti,

 3  Bearss, or Florida Key limes); and any other nonexempt

 4  agricultural products produced in the state, except tobacco,

 5  tropical foliage, sugarcane, timber and timber by-products,

 6  forest products as defined in s. 591.17, and citrus other than

 7  limes.

 8         (2)(1)  "Dealer in agricultural products" means any

 9  person, partnership, corporation, or other business entity,

10  whether itinerant or domiciled within this state, engaged

11  within this state in the business of purchasing, receiving, or

12  soliciting agricultural products from the producer or the

13  producer's her or his agent or representative for resale or

14  processing for sale; acting as an agent for such producer in

15  the sale of agricultural products for the account of the

16  producer on a net return basis; or acting as a negotiating

17  broker between the producer or the producer's her or his agent

18  or representative and the buyer.

19         (3)(6)  "Delivery ticket" means a document provided to

20  a grain producer by a grain dealer in conjunction with the

21  delivery of grain to the grain dealer.

22         (4)(2)  "Department" means the Department of

23  Agriculture and Consumer Services.

24         (5)(7)  "Grain" means any food or feed grains, which

25  include, but are not limited to, soybeans, corn, wheat, oats,

26  and rye.

27         (6)(8)  "Grain dealer" means any person engaged in this

28  state in:

29         (a)  Buying, receiving, selling, exchanging,

30  negotiating, or processing for resale, or soliciting the sale,

31  resale, exchange, or transfer of, grain purchased from the

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  producer or the producer's her or his agent or representative

 2  or received from the producer to be handled on a net return

 3  basis; or

 4         (b)  Receiving grain for storage.

 5         (7)  "Negotiating broker" means any person in the state

 6  engaged in the business of negotiating sales and purchases of

 7  agricultural products with a dealer in agricultural products

 8  for or on behalf of the producer or the producer's agent or

 9  representative. The negotiating broker never takes title to

10  the agricultural product involved in the sale or purchase or

11  handles the proceeds therefrom.

12         (8)(4)  "Net return basis" means the sale of

13  agricultural products for the account of a producer person,

14  other than the seller, wherein the seller acts as the agent

15  for the producer owner and pays the producer owner of such

16  products the net proceeds after subtracting all authorized and

17  allowable deductions.

18         (9)(5)  "Producer" means any grower producer of

19  agricultural products produced in the state.

20         (10)  "Producer's agent" means the seller of

21  agricultural products for the account of a producer or group

22  of producers on a net return basis, wherein the producer's

23  agent acts as the agent for the producer or group of producers

24  and pays the producer of such products all of the net proceeds

25  after subtracting all authorized and allowable deductions.

26  Allowable deductions may include, but are not limited to:

27  packing charges, shipping charges, boxes, crates, billing,

28  commission fees, cooling charges, pallets, and other

29  deductible charges or fees agreed upon by the producer and

30  producer's agent.

31  

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1         Section 2.  Subsections (2) and (4) of section 604.16,

 2  Florida Statutes, are amended to read:

 3         604.16  Exceptions to provisions of ss.

 4  604.15-604.34.--Except for s. 604.22(2), the provisions of ss.

 5  604.15-604.34 do not apply to:

 6         (2)  A dealer in agricultural products All persons who

 7  pays buy for cash and pay at the time of purchase with United

 8  States cash currency or a cash equivalent, such as a money

 9  order, cashier's check, wire transfer, electronic funds

10  transfer, or debit card.

11         (4)  Dealers who operate exclusively on a retail basis

12  and who purchase less than $1,000 worth of agricultural

13  products from Florida producers or their agents or

14  representatives during the peak month of such purchases within

15  the calendar year.

16         Section 3.  Section 604.18, Florida Statutes, is

17  amended to read:

18         604.18  Application; form; contents.--Every dealer in

19  agricultural products, desiring to transact business within

20  the state directly with a Florida producer, a producer's agent

21  or representative, or a negotiating broker, shall, prior to

22  transacting any business as such, file an application for such

23  license with the department. License shall be renewed annually

24  on its anniversary date. The application shall be on a form

25  furnished by the department and, together with such other

26  information as the department shall require, shall state:

27         (1)  The kind or kinds of agricultural products the

28  applicant proposes to handle.;

29         (2)  The full name or title of the person, partnership,

30  corporation, or other business entity and applicant, or if the

31  applicant be an association or copartnership, the name of each

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  member of such association or copartnership, or if the

 2  applicant be a corporation, the name and mailing address of

 3  each owner, partner, officer, or managing agent. officer of

 4  the corporation;

 5         (3)  The names of buyers or other local agents of the

 6  applicant, if any.;

 7         (4)  The cities and towns within which places of

 8  business of the applicant will be located, together with the

 9  street or mailing address of each.; and

10         (5)  The federal employer's identification number of

11  the applicant, if any.

12         (6)  The primary mailing address and physical address

13  for each place of business. A dealer in agricultural products

14  must have on file with the department the address of the

15  dealer's primary place of business prior to engaging in

16  business as a dealer in agricultural products in this state.

17  Prior to changing the address of the primary place of

18  business, the dealer must notify the department of the address

19  of the new primary place of business. All documents relating

20  to the provisions of ss. 604.15-604.34 and chapter 120 shall

21  be served to the last address of record; to a corporation's

22  registered agent or the registered agent's substitute; in the

23  absence of a registered agent, to an owner, officer, partner,

24  employee, or managing agent of the business entity; or as

25  designated by the applicant in the applicant's application.

26         (7)  The dollar amount of business done by a renewal

27  applicant with Florida producers and their agents or

28  representatives during the month in which the maximum dollar

29  amount of agricultural products was purchased or handled as a

30  dealer in agricultural products or the dollar amount of

31  business estimated to be done by a first-time applicant with

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  Florida producers and their agents or representatives during

 2  the month in which the estimated maximum dollar amount of

 3  agricultural products will be purchased or handled as a dealer

 4  in agricultural products.

 5         Section 4.  Section 604.19, Florida Statutes, is

 6  amended to read:

 7         604.19  License; fee; bond; certificate of deposit;

 8  penalty.--Unless the department refuses the application on one

 9  or more of the grounds provided in this section, it shall

10  issue to an applicant, upon the payment of required proper

11  fees and the execution and delivery of a bond or certificate

12  of deposit as provided in this section, a state license

13  entitling the applicant to conduct business as a dealer in

14  agricultural products for a 1-year period to coincide with the

15  effective period of the bond or certificate of deposit

16  furnished by the applicant. During the 1-year period covered

17  by a license, if the supporting surety bond or certificate of

18  deposit is canceled for any reason, the license shall

19  automatically expire on the date the surety bond or

20  certificate of deposit terminates, unless an acceptable

21  replacement is in effect before the date of termination so

22  that continual coverage occurs for the remaining period of the

23  license. A surety company shall give the department a 30-day

24  written notice of cancellation by certified mail in order to

25  cancel a bond. Cancellation of a bond or certificate of

26  deposit shall not relieve a surety company or financial

27  institution of liability for purchases or sales occurring

28  while the bond or certificate of deposit was in effect. The

29  license fee, which must be paid for the principal place of

30  business for a dealer in agricultural products, shall be based

31  upon the amount of the dealer's surety bond or certificate of

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  deposit furnished by each dealer under the provisions of s.

 2  604.20 and may not exceed $500 $300. For each additional place

 3  in which the applicant desires to conduct business and which

 4  the applicant names in the application, the additional license

 5  fee must be paid but may not exceed $100 $50 annually. Should

 6  any dealer in agricultural products fail, refuse, or neglect

 7  to apply and qualify for the renewal of a license on or before

 8  the date of expiration thereof, a penalty not to exceed $100

 9  $35 shall apply to and be added to the original license fee

10  and shall be paid by the applicant before the renewal license

11  may be issued. The department by rule shall prescribe fee

12  amounts sufficient to fund ss. 604.15-604.34.

13         Section 5.  Section 604.20, Florida Statutes, is

14  amended to read:

15         604.20  Bond or certificate of deposit prerequisite;

16  amount; form.--

17         (1)  Before any license is issued, the applicant

18  therefor shall make and deliver to the department a surety

19  bond or certificate of deposit in the amount of at least

20  $5,000 $3,000 or in such greater amount as the department may

21  determine, not exceeding the maximum amount of business done

22  or estimated to be done in any month by the applicant. No bond

23  or certificate of deposit may be in an amount less than

24  $5,000. The penal sum of the bond or certificate of deposit to

25  be furnished to the department by an applicant for license as

26  a dealer in agricultural products shall be in an amount equal

27  to twice the dollar amount of agricultural products handled

28  for a Florida producer or a producer's agent or

29  representative, by purchase or otherwise, during the month of

30  maximum transaction in such products during the preceding

31  12-month period. An applicant for licensure who has not

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  handled agricultural products for a Florida producer or a

 2  producer's agent or representative, by purchase or otherwise,

 3  during the preceding 12-month period shall furnish a bond or

 4  certificate of deposit in an amount equal to twice the

 5  estimated dollar amount of such agricultural products to be

 6  handled, by purchase or otherwise, during the month of maximum

 7  transaction during the next immediate 12 months. Such bond or

 8  certificate of deposit shall be provided or assigned in the

 9  exact name in which the dealer will conduct business subject

10  to the provisions of ss. 604.15-604.34. Such bond must be

11  executed by a surety company corporation authorized to

12  transact business in the state. For the purposes of ss.

13  604.19-604.21, the term "certificate of deposit" means a

14  certificate of deposit at any recognized financial institution

15  doing business in the United States. No certificate of deposit

16  may be accepted in connection with an application for a

17  dealer's license unless the issuing institution is properly

18  insured by either the Federal Deposit Insurance Corporation or

19  the Federal Savings and Loan Insurance Corporation. Such bond

20  or any certificate of deposit assignment or agreement shall be

21  upon a form prescribed or approved by the department and shall

22  be conditioned to secure the faithful accounting for and

23  payment, in the manner prescribed by s. 604.21(9), to

24  producers or their agents or representatives of the proceeds

25  of all agricultural products handled or purchased by such

26  dealer and to secure payment to dealers who sell agricultural

27  products to such dealer. Such bond or certificate of deposit

28  assignment or agreement shall include terms binding the

29  instrument to the Commissioner of Agriculture. A certificate

30  of deposit shall be presented with an assignment of

31  applicant's rights in the certificate in favor of the

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  Commissioner of Agriculture on a form prescribed by the

 2  department and with a letter from the issuing institution

 3  acknowledging that the assignment has been properly recorded

 4  on the books of the issuing institution and will be honored by

 5  the issuing institution. Such assignment shall be irrevocable

 6  while the dealer's license is in effect and for an additional

 7  period of 6 months after the termination or expiration of the

 8  dealer's license provided no complaint is pending against the

 9  licensee. If a complaint is pending, the assignment shall

10  remain in effect until all actions on the complaint have been

11  finalized. The certificate of deposit may be released by the

12  assignee of the financial institution to the licensee or the

13  licensee's successors, assignee, or heirs if no claims are

14  pending against the licensee before the department at the

15  conclusion of 6 months after the last effective date of the

16  license. No certificate of deposit shall be accepted that

17  contains any provision that would give the issuing institution

18  any prior rights or claim on the proceeds or principal of such

19  certificate of deposit. The department shall determine by rule

20  the maximum amount of bond or certificate of deposit required

21  of a dealer and whether an annual or continuous bond or

22  certificate of deposit will be required.

23         (2)  The amount of such bond or certificate of deposit

24  shall, upon the order of the department at any time, be

25  increased, if in its discretion the department finds such

26  increase to be warranted by the dollar amount volume of

27  agricultural products being handled, by purchase or otherwise,

28  by the licensee. In the same manner, the amount of such bond

29  or certificate of deposit may be decreased when a decrease in

30  the dollar amount volume of products handled, by purchase or

31  otherwise, warrants such decrease. These provisions apply to

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  any bond or certificate of deposit, regardless of the

 2  anniversary date of its issuance, expiration, cancellation, or

 3  renewal.

 4         (3)  In order to effectuate the purposes of this

 5  section, the department or its agents may require from any

 6  applicant or licensee verified statements of the dollar amount

 7  volume of the applicant's or licensee's her or his business or

 8  may review the applicant's applicant or licensee's records at

 9  the applicant's or licensee's her or his place of business

10  during normal business hours to determine the actual dollar

11  amount of agricultural products handled, by purchase of

12  otherwise for the purpose of determining her or his volume of

13  business. The failure of a licensee to furnish such statement,

14  to make such records available, or to make and deliver a new

15  or additional bond or certificate of deposit shall be cause

16  for suspension of the licensee's license. If the department

17  finds such failure to be willful, the license may be revoked.

18         (4)  The department may issue a conditional license to

19  an applicant who is unable to provide a single bond or

20  certificate of deposit in the full amount required by the

21  calculation in subsection (1). The conditional license shall

22  remain in effect for a 1-year period to coincide with the

23  effective period of the bond or certificate of deposit

24  furnished by the applicant. The applicant must provide at

25  least the minimum $5,000 bond or certificate of deposit as

26  provided in subsection (1) together with one of the following:

27         (a)  A notarized affidavit limiting the handling of

28  agricultural products, by purchase or otherwise, during their

29  largest month to a minimum of one-half the amount of the bond

30  or certificate of deposit provided by the applicant;

31  

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1         (b)  A notarized affidavit stating that any subject

 2  agricultural products, handled by purchase or otherwise,

 3  exceeding one-half of the amount of the bond or certificate of

 4  deposit will be handled under the exemption provisions set

 5  forth in s. 604.16(2); or

 6         (c)  A second bond or certificate of deposit in such an

 7  amount that, when the penal sum of the second bond or

 8  certificate of deposit is added to the penal sum of the first

 9  bond or certificate of deposit, the combined penal sum will

10  equal twice the dollar amount of agricultural products handled

11  for a Florida producer or a producer's agent or

12  representative, by purchase or otherwise, during the month of

13  maximum transaction in such products during the preceding

14  12-month period.

15  

16  The department or its agents may require from any licensee who

17  is issued a conditional license verified statements of the

18  volume of the licensee's business or may review the licensee's

19  records at the licensee's place of business during normal

20  business hours to determine the licensee's adherence to the

21  conditions of the license. The failure of a licensee to

22  furnish such statement or to make such records available shall

23  be cause for suspension of the licensee's conditional license.

24  If the department finds such failure to be willful, the

25  conditional license may be revoked.

26         Section 6.  Section 604.21, Florida Statutes, is

27  amended to read:

28         604.21  Complaint; investigation; hearing.--

29         (1)(a)  Any person, partnership, corporation, or other

30  business entity claiming herself or himself to be damaged by

31  any breach of the conditions of a bond or certificate of

                                  12

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  deposit assignment or agreement given by a licensed dealer in

 2  agricultural products as hereinbefore provided may enter

 3  complaint thereof against the dealer and against the surety

 4  company, if any, to the department, which complaint shall be a

 5  written statement of the facts constituting the complaint.

 6  Such complaint shall include all agricultural products defined

 7  in s. 604.15(1), as well as any additional charges necessary

 8  to effectuate the sale unless these additional charges are

 9  already included in the total delivered price. Such complaint

10  shall be filed within 6 months from the date of sale in

11  instances involving direct sales or from the date on which the

12  agricultural product was received by the dealer in

13  agricultural products, as agent, to be sold for the producer.

14  No complaint shall be filed pursuant to this section unless

15  the transactions involved total at least $500 $250 and

16  occurred in a single license year. Before a complaint can be

17  processed, the complainant must provide the department with a

18  $50 filing fee. In the event the complainant is successful in

19  proving the claim, the dealer in agricultural products shall

20  reimburse the complainant for the $50 filing fee as part of

21  the settlement of the claim.

22         (b)  To be considered timely filed, a complaint

23  together with any required affidavits or notarizations must be

24  received by the department within 6 months after the date of

25  sale by electronic transmission, facsimile, regular mail,

26  certified mail, or private delivery service. If the complaint

27  is sent by a service other than electronic mail or facsimile,

28  the mailing shall be postmarked or dated on or before the

29  6-month deadline to be accepted as timely filed.

30         (c)  When multiple claims exist by a producer, a

31  producer's agent or representative, or a dealer and the

                                  13

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  combined adjudicated amounts exceed the total amount of any

 2  bond and certificate of deposit, sales occurring 120 or more

 3  days after the oldest sale stated in any complaint filed by

 4  the same producer, producer's agent or representative, or

 5  dealer shall not be considered for payment from the proceeds

 6  of the bond or certificate of deposit in the event that the

 7  surety company or financial institution is called on to make

 8  payment.

 9         (d)  A person, partnership, corporation, or other

10  business entity filing a complaint shall submit to the

11  department the following documents: three completed complaint

12  affidavits on a form provided by the department with an

13  original signature of an owner, partner, general partner, or

14  corporate officer and an original notarization on each

15  affidavit. If the complaint is filed by electronic

16  transmission or facsimile, the original affidavits and

17  original notarizations shall be filed with the department not

18  later than the close of business of the tenth business day

19  following the electronic transmission or facsimile filing.

20  Attached to each complaint affidavit shall be copies of all

21  documents to support the complaint. Supporting documents may

22  be copies of invoices, bills of lading, packing or shipping

23  documents, demand letters, or any other documentation to

24  support the claim. In cases in which there are multiple

25  invoices being claimed, a summary list of all claimed invoices

26  must accompany the complaint.

27         (e)  A dealer in agricultural products who is in

28  compliance with ss. 604.15-604.34 may file a complaint with

29  the department against another licensed dealer in agricultural

30  products. However, payment from a bond or certificate of

31  deposit to a dealer shall occur only after all claims of

                                  14

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  producers or producers' agents or representatives have been

 2  paid in full except as provided pursuant to paragraph (c).

 3         (f)  Filing a complaint with the department does not

 4  constitute an election of remedies when the same or similar

 5  complaint is filed in another venue.

 6         (g)  The surety company or financial institution shall

 7  be responsible for payment of properly established complaints

 8  filed against a dealer, notwithstanding the dealer's filing of

 9  a bankruptcy proceeding.

10         (2)  Upon the filing of such complaint in the manner

11  herein provided, the department shall investigate the matters

12  complained of; whereupon, if, in the opinion of the

13  department, the facts contained in the complaint warrant such

14  action, the department shall serve notice of the filing of

15  complaint send to the dealer against whom the complaint has

16  been filed at the last address of record in question, by

17  certified mail, notice of the filing of the complaint. Such

18  notice shall be accompanied by a true copy of the complaint. A

19  copy of such notice and complaint shall also be served sent to

20  the surety company, if any, that provided the bond for the

21  dealer, which surety company shall become party to the action.

22  Such notice of the complaint shall inform the dealer of a

23  reasonable time within which to answer the complaint by

24  advising the department in writing that the allegations in the

25  complaint are admitted or denied or that the complaint has

26  been satisfied. Such notice shall also inform the dealer and

27  the surety company or financial institution, if any, of a

28  right to a hearing on the complaint, if requested.

29         (3)  If the dealer files an answer admitting admits the

30  allegations of the complaint and the department determines

31  through inquiry of the complainant that the dealer has failed

                                  15

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  but fails to satisfy same within 21 days after receipt of the

 2  notice of the filing of a complaint by any party whose

 3  substantial interests are determined the time fixed by the

 4  department, the department shall thereupon order payment by

 5  the dealer of the amount found owed. In the event a party

 6  files a request that the complaint be held in abeyance pending

 7  a settlement agreement, the period of abeyance shall not

 8  exceed 6 months and successive periods of abeyance shall not

 9  be granted.

10         (4)  If the dealer files an answer and, in her or his

11  answer, denies the allegations of the complaint and waives a

12  hearing, the department may order a hearing or enter an order

13  based on the facts and circumstances set forth in the

14  complaint and the respondent's answer thereto. If the

15  department determines the complaint has not been established

16  or fails to meet the provisions of this section, the order

17  shall, among other things, dismiss the proceedings. If the

18  department determines that the allegations of the complaint

19  have been established, it shall enter its findings of fact

20  accordingly and thereupon enter its order adjudicating the

21  amount of indebtedness due to be paid by the dealer to the

22  complainant.

23         (5)  Any order entered by the department pursuant to

24  this section shall become final and effective on the date

25  filed with the department's agency clerk 14 days after issue

26  if neither the department nor a party whose material interest

27  is affected by the order requests a hearing on the order

28  within 14 days following the date of issue.

29         (6)  Any party whose substantial material interest is

30  affected by a proceeding pursuant to this section shall be

31  granted a hearing upon request as provided by chapter 120.

                                  16

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  Such hearing shall be conducted pursuant to chapter 120. The

 2  final order of the department, when issued pursuant to the

 3  recommended order of an administrative law judge, shall be

 4  final and effective on the date filed with the department's

 5  agency clerk. Any party to these proceedings adversely

 6  affected by the final order is entitled to seek review of the

 7  final order pursuant to s. 120.68 and the Florida Rules of

 8  Appellate Procedure. Should a complaint forwarded by the

 9  department to the Division of Administrative Hearings be

10  settled prior to a hearing pursuant to chapter 120, the

11  department shall issue a notice closing the complaint file

12  upon receipt of the administrative law judge's order closing

13  the complaint file, and the matter before the department shall

14  be closed accordingly upon issuance.

15         (7)  Any indebtedness set forth in a departmental order

16  against a dealer shall be paid by the dealer within 15 days

17  after such order becomes final.

18         (8)  Upon the failure by a dealer to comply with an

19  order of the department directing payment, the department

20  shall, in instances involving bonds, call upon the surety

21  company to pay over to the department out of the bond posted

22  by the surety company for such dealer or, in instances

23  involving certificates of deposit, call upon the financial

24  institution issuing such certificate to pay over to the

25  department out of the certificate under the conditions of the

26  assignment or agreement, the amount called for in the order of

27  the department, not exceeding the amount of the bond or the

28  principal of the certificate of deposit. If the bond or the

29  principal of the certificate of deposit is insufficient to pay

30  in full the amount due each complainant as set forth in the

31  order of the department, the department shall distribute the

                                  17

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  proceeds pro rata among such complainants. The proceeds from a

 2  bond or the principal from a certificate of deposit shall be

 3  paid directly to the department to be distributed by it to

 4  successful complainants, except the accrued interest on a

 5  certificate of deposit shall be paid to the dealer. Such funds

 6  shall be considered trust funds in the hands of the department

 7  for the exclusive purpose of satisfying duly established

 8  complaints. Payments made to the department pursuant to this

 9  section shall be considered payments made upon demand and may

10  not be considered voluntary payments.

11         (9)  Payments from a surety company or proceeds from a

12  certificate of deposit shall be paid first to the producer or

13  the producer's agent or representative in the amount of the

14  producer's claims in full if such proceeds are sufficient for

15  such purpose and, if not, then in pro rata shares to such

16  producer or producer's agent or representative. If additional

17  proceeds exist in the hands of the department after all claims

18  of a producer and a producer's agent or representative have

19  been paid in full, the balance of such proceeds shall be paid

20  to claimants who are licensed dealers in agricultural

21  products, either in whole or in pro rata portion, as the

22  aggregate of their claims may bear to the amount of such

23  additional proceeds.

24         (10)(9)  Nothing in this section may be construed as

25  relieving a surety company from responsibility for payment on

26  properly established complaints against dealers involved in a

27  federal bankruptcy proceeding and against whom the department

28  is prohibited from entering an order.

29         (11)(10)  Upon the failure of a surety company to

30  comply with a demand for payment of the proceeds on a bond for

31  a dealer in agricultural products, a complainant who is

                                  18

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  entitled to such proceeds, in total or in part, may, within a

 2  reasonable time, file in the circuit court a petition or

 3  complaint setting forth the administrative proceeding before

 4  the department and ask for final order of the court directing

 5  the surety company to pay the bond proceeds to the department

 6  for distribution to the complainants. If in such suit the

 7  complainant is successful and the court affirms the demand of

 8  the department for payment, the complainant shall be awarded

 9  all court costs incurred therein and also a reasonable

10  attorney's fee to be fixed and collected as part of the costs

11  of the suit. In lieu of such suit, the department may enforce

12  its final agency action in the manner provided in s. 120.69.

13         Section 7.  Section 604.22, Florida Statutes, is

14  amended to read:

15         604.22  Dealers to keep records; contents.--

16         (1)  Each licensee, while acting as agent for a

17  producer, shall make and preserve for at least 1 year a record

18  of each transaction, specifying the name and address of the

19  producer for whom she or he acts as agent; the date of

20  receipt; the kind, quality, and quantity of agricultural

21  products received; the name and address of the purchaser of

22  each package of agricultural products; the price for which

23  each package was sold; the amount of any additional charges

24  necessary to effectuate the sale; the amount and explanation

25  of any adjustments given; and the net amount due from each

26  purchaser. An account of sales shall be furnished each

27  producer within 48 hours after the sale of such agricultural

28  products unless otherwise agreed to in a written contract or

29  verifiable oral agreement. Such account of sales shall clearly

30  show the sale price of each lot of agricultural products sold;

31  all adjustments to the original price, along with an

                                  19

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  explanation of such adjustments; and an itemized showing of

 2  all marketing costs deducted by the licensee, along with the

 3  net amount due the producer. The licensee shall make the

 4  payment to the producer within 5 days of the licensee's

 5  receipt of payment unless otherwise agreed to in a written

 6  contract or verifiable oral agreement.

 7         (2)(a)  The provisions of s. 604.16(2), (3), and (4)

 8  notwithstanding, any person, partnership, corporation, or

 9  other business entity, except a person described in s.

10  604.16(1), who possesses and offers for sale agricultural

11  products is required to possess and display, upon the request

12  of any department representative or state, county, or local

13  law enforcement officer, an invoice, bill of sale, manifest,

14  or other written document showing the date of sale, the name

15  and address of the seller, and the kind and quantity of

16  products for all such agricultural products.

17         (b)  Any person who violates the provisions of this

18  subsection is guilty of a misdemeanor of the second degree,

19  punishable as provided in s. 775.082 or s. 775.083.

20         Section 8.  Section 604.23, Florida Statutes, is

21  amended to read:

22         604.23  Examination of records, sales, accounts, books,

23  and other documents.--The department shall have power to

24  investigate, upon complaint of any interested person or upon

25  its own initiative, the record of any dealer in agricultural

26  products applicant or licensee, or any transaction involving

27  the solicitation, receipt, sale or attempted sale of

28  agricultural products, the failure to make proper and true

29  accounts and settlements at prompt and regular intervals, the

30  making of false statements as to condition, quality or

31  quantity of goods received or while in storage, the making of

                                  20

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  false statements as to market conditions with intent to

 2  deceive, or the failure to make payment for goods received, or

 3  other alleged injurious transactions. For such purposes the

 4  department or its agents may examine, at the place or places

 5  of business of the dealer in agricultural products, the

 6  applicant or licensee, her or his ledgers, books of accounts,

 7  memoranda, and other documents which relate to the transaction

 8  involved, and may take testimony thereon under oath.

 9         Section 9.  Paragraphs (a) and (d) of subsection (1) of

10  section 604.25, Florida Statutes, are amended to read:

11         604.25  Refusal to grant, or suspension or revocation

12  of, license.--

13         (1)  The department may decline to grant a license or

14  may suspend or revoke a license already granted if the

15  applicant or licensee has:

16         (a)  Suffered a monetary money judgment to be entered

17  against the applicant or licensee her or him upon which

18  execution has been returned unsatisfied;

19         (d)  Made any false statement or statements as to

20  condition, quality, or quantity of goods received or held for

21  sale when she or he could have ascertained the true condition,

22  quality, or quantity could have been ascertained by reasonable

23  inspection;

24         Section 10.  Section 604.30, Florida Statutes, is

25  amended to read:

26         604.30  Penalties; injunctive relief; administrative

27  fines.--

28         (1)  Any dealer in agricultural products who violates

29  the provisions of ss. 604.15-604.34, or who interferes with an

30  agent of the department in the enforcement of ss.

31  604.15-604.34, is guilty of a misdemeanor of the second

                                  21

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  degree, punishable as provided in s. 775.082 or s. 775.083,

 2  and for a second or subsequent offense is guilty of a

 3  misdemeanor of the first degree, punishable as provided in s.

 4  775.082 or s. 775.083.

 5         (2)  In addition to the remedies provided in this

 6  chapter and notwithstanding the existence of any adequate

 7  remedy at law, when the department has probable cause to

 8  believe that any person, partnership, corporation, or other

 9  business entity has violated any provision of this chapter or

10  any rule adopted pursuant thereto, the department may issue

11  and deliver to such person, partnership, corporation, or other

12  business entity a notice to cease and desist from such

13  violation. For the purpose of enforcing a cease and desist

14  order, the department may file a proceeding in the name of the

15  state seeking issuance of an injunction or writ of mandamus

16  against any person, partnership, corporation, or other

17  business entity who violates any provisions of such order, and

18  such injunction shall be issued without bond.

19         (3)(a)  In addition to the penalties provided in this

20  section, the department may, after notice and hearing, impose

21  a fine not exceeding $2,500 $1,000 for the violation of any of

22  the provisions of ss. 604.15-604.34 or the rules adopted

23  thereunder against any dealer in agricultural products; such

24  fine, when imposed and paid, shall be deposited by the

25  department into the General Inspection Trust Fund.

26         (b)  Whenever any administrative order has been made

27  and entered by the department imposing a fine pursuant to this

28  subsection, the order shall specify the amount of the fine and

29  a time limit of no more than 15 days for the payment thereof.

30  Upon the failure of the dealer involved to pay the fine within

31  that time, the dealer's license as dealer in agricultural

                                  22

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                           CS for SB 1780
    590-2331-05




 1  products shall be subject to suspension or revocation and a

 2  fine not to exceed $100 of $50 a day shall be imposed on the

 3  dealer while the dealer she or he is in violation of such

 4  order.

 5         Section 11.  The sum of $285,000 is appropriated from

 6  the General Inspection Trust Fund to the Department of

 7  Agriculture and Consumer Services, and four additional

 8  full-time equivalent positions are authorized, for the purpose

 9  of implementing this act during the 2005-2006 fiscal year.

10         Section 12.  This act shall take effect October 1,

11  2005.

12  

13          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
14                         Senate Bill 1780

15                                 

16  Committee Substitute for Senate Bill 1780 is different from
    Senate Bill 1780 in that it:
17  
    1.   Raises the bond or certificate of deposit amount required
18       in Section 5 from $3,000 to $5,000.

19  2.   Appropriates $285,000 from the General Inspection Trust
         Fund to the Department of Agriculture and Consumer
20       Services, and four additional full-time-equivalent
         positions for the purpose of implementing this act.
21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  23

CODING: Words stricken are deletions; words underlined are additions.