STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREENBRIAR NURSERIES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 85-3686A

)

PAUL PENT, d/b/a )

PENT LANDSCAPE COMPANY, and ) TRANSAMERICA INSURANCE COMPANY, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above-styled case on April 21, 1986 in Ocala, Florida.

APPEARANCES

For Petitioner: William D. Reese

President and Owner Greenbriar Nurseries, Inc. 2025 NE 70th Street

Ocala, Florida 32071 For Respondents: No Appearance

By complaint filed with the Bureau of License and Bonds Florida Department of Agriculture and Consumer Services, (Department) on July 26, 1985, and submitted to the Division of Administrative Hearings on October 28, 1985 for hearing, Petitioner seeks payment of a balance due on nursery stock sold to Respondent Paul Pent, d/b/a Pent Landscaping Company (Pent) on January 11, 1985 and delivered on March 21 and 28, 1985.

In support of the allegation Petitioner presented the testimony of William D. Reese and Brenda Hyatt. Petitioner's

exhibits 1-3 were received into evidence. The Respondents did not appear and offer any testimony or exhibits at the hearing.

Neither Petitioner nor Respondents submitted posthearing proposed findings of fact and conclusions of law as allowed by Section 120.57(1)(b)(4). Florida Statutes.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearings the following facts are found:

1. At all times pertinent to this proceedings Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1985).

   
   

2. At all times pertinent to this proceedings Respondent Pent was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1985), issued license no. 3531 by the Department, and bonded by Respondent Transamerica Insurance Company (Transamerica) in the sum of $4,750.00 - Bond No. 51 823 994.

   
   

3. At all times pertinent to this proceedings Respondent Transamerica was authorized to do business in the State of Florida.

   
   

4. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1); Florida Statutes (1985).

   
   

5. On January 11, 1985 Respondent Pent purchased 1900 photinia fraserii plants to be delivered at a later date for a total price of $8,977.50 with a down payment of $2,185.31 leaving a balance of $6,792.19.

   
   

6. Sixteen hundred (1600) and three hundred (300) photinia fraserii plants were delivered on March 21 and 28, 1986, respectively.

   
   

7. On July 7; 1985 Respondent made a partial payment to Petitioner of $1,292.19 of which Petitioner credited Respondent Pent with $981.94 against the purchase of the plants and $310.25 was applied to past due service charges, leaving a balance of

   $5,610.25 owing for plants which was reduced to $5,310.25 by a partial payment of $500.00 on August 9, 1985. No further payments have been made by Respondent Pent.

   
   

8. Respondent has not denied receiving the plants nor did he complain about their quality or condition upon delivery.

   
   

9. Respondent Pent owes a balance of $5,310.25 to Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter off this proceeding.

    
    

11. Respondent Pent was a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes (1985) and, as such, was required to be licensed by the Department pursuant to Section 604.17, Florida Statutes (1985) and, as a requirement of licensing, had to show the Department evidence of a surety bond or a certificate of deposit in accordance with Section 604.20, Florida Statutes (1985) and Rule 5H-1.01, Florida Administrative Code. Respondent Pent was properly but insufficiently bonded by Respondent Transamerica for the sum of $4,750.00.

    
    

12. The Petitioner, a "producer" of agricultural products as defined by Section 604.15(5), Florida Statutes (1985) filed a timely complaint against Respondent Pent and his surety, Respondent Transamerica in accordance with Section 604.21, Florida Statutes (1985) alleging, among other things, that Respondent Pent had refused to pay for "agricultural products" as defined by Section 604.15(3), Florida Statutes (1983) sold to Respondent Pent on January 11, 1985 and delivered on March 21 and 28, 1985.

    
    

13. The evidence is clear that Respondent Pent owes Petitioner $5,310.25 for nursery stock sold and delivered to Respondent Pent.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Pent be ordered to pay to the Petitioner the sum of $5,310.25. It is further RECOMMENDED that if Respondent Pent fails to timely pay the Petitioner as ordered, then Respondent Transamerica be ordered to pay the Department as required by Section 604.21, Florida Statutes (1985) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1985).

Respectfully submitted and entered this 23rd day of May, 1986, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1986.

COPIES FURNISHED:

Doyle Conner, Commissioner Department of Agriculture and

Consumer Services The Capitol

Tallahassee, Florida 32301

Robert Chastain, General Counsel Department of Agriculture and

Consumer Services Mayo Building Room 513

Tallahassee, Florida 32301

Ron Weaver, Esquire Department of Agriculture and

Consumer Services Mayo Building

Tallahassee, Florida 32301

Mr. Joe W. Kight Chief Bureau of License and Bond

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32301

Transamerica Insurance Company 1150 S. Olive Street

Los Angeles, CA 90015

Mr. Paul Pent

Paul Pent Landscape Company 1660 Emerson Street

Jacksonville, Florida 32207

William D. Reese Greenbriar Nurseries, Inc. 2025 N.E. 70th Street Ocala, Florida 32670

Docket for Case No: 85-003686

Orders for Case No: 85-003686