Judges: MARY CLARK
Agency: Department of Agriculture and Consumer Services
Latest Update: May 01, 1986
Summary: Respondent owes Petitioner $6159.00 for nursery plants not paid for.
85-4177.PDF
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MONTICELLO NURSERY COMPANY )
OF FLORIDA, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 85-4177A
)
PAUL PENT, d/b/a PAUL PENT )
LANDSCAPE COMPANY, and ) TRANSAMERICA INSURANCE COMPANY, )
)
Respondents. )
)
RECOMMENDED ORDER
Final hearing in the above-styled action was held in Tallahassee, Florida on April 24, 1986, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.
Petitioner was represented by John C. Cooper, Esquire, 211 East Call Street, Tallahassee, Florida 32302-1674. Respondent was not represented and did not appear in person. Surety, Transamerica Insurance Company, likewise did not appear.
BACKGROUND
This proceeding arose when Petitioner filed its complaint on September 5, 1985, with the Department of Agriculture and Consumer Services alleging Respondent's indebtedness in the amount of
$6159.30. The complaint was amended on September 13, 1985 to change the Respondent's name from Dean Pent to Paul Pent.
An order was entered on November 15, 1985 by Agriculture Commissioner, Doyle Conner, accepting the sworn complaint of Petitioner, in the absence of a timely answer or request for hearing from the Respondent. The order did not become final, as Respondent then filed a timely request for this Section 120.57 Florida Statutes hearing.
At the hearing Petitioner presented evidence through the testimony of its bookkeeper, Sandy Mazza, and a composite exhibit consisting of the complaint, the amended complaint and invoices and letters attached to the complaint,
FINDINGS OF FACT
Petitioner, Monticello Nursery Company of Florida, Inc., is a corporation whose address is Post Office Box 190, Monticello, Florida. (Petitioner's Complaint)
Respondent, Paul Pent, d/b/a Paul Pent Landscape Company, is located at 1660 Emerson Street, Jacksonville, Florida. At the time of the transactions involved, Respondent was licensed as a dealer in agricultural products under License No. 3531. (Petitioner's Complaint, Order of Department of Agriculture dated November 15, 1985)
Corespondent, Transamerica Insurance Company as surety provided bond number 5182-39-34 for Respondent in the amount of
$4,750. (Petitioner's Complaint, Order of Department of Agriculture dated November 15, 1985)
Petitioner's complaint for $6,159.30 is based upon two invoices for nursery plants: Invoice 1060 in the amount of
$2,612.80, and Invoice 1308 in the amount of $6,109.30. From the total of $8,722.10 is deducted "payments and credit" of $2,562.80. (Petitioner's Complaint) The figures on the complaint and the attached invoices accurately reflect the statement of account for the subject transactions. (Testimony of Sandy Mazza)
Invoice No. 1060 is for several kinds of nursery plants and is dated 12/31/84. On the invoice the order date is 10/26/84 and the "ship date" is 12/07/84. Whether the sale occurred upon order, shipment or date of invoice is immaterial, as all three dates are more than nine months prior to the filing of the complaint on September 5, 1985.
Invoice No. 1308 is for a quantity of crepe myrtle trees and is dated 1/31/85. The order date and "ship date" are both 1/28/85.
One invoice supports, and the other conflicts with, the date of 12/31/84, stated on the face of the complaint as the "date of sale". The invoices are competent evidence as supported by the bookkeeper's testimony.
The finding in the November 15, 1985 order of the Department of Agriculture and Consumer Services that the sale totaling $6,159.30 was made on September 5, 1985, conflicts with both the complaint and the invoices and is unsupported by any evidence in the record.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this proceeding and the parties thereto pursuant to Sections 120.57(1) and 604.21(6) Florida Statutes.
Section 604.21 Florida Statutes describes a complaint and hearing procedure for claims of damage by breach of an agreement by a licensed dealer in agricultural products. Subsection 604.21(1) Florida Statutes provides:
Complaint; investigation:
hearing-
Any person claiming himself to be damaged by any breach of the conditions of a bond or certificate of deposit assignment or agreement given by a licensed dealer in agricultural products as hereinbefore provided may enter complaint thereof against the dealers and against the surety, if any, to the department, which complaint shall be a written statement of the facts constituting the complaint. Such complaint shall be filed within 9 months from the date of sale in instances involving direct sales or from the date on which the agricultural product was received by the dealer in agricultural products as agent, to be sold for the producer. (emphasis added)
Petitioner has the burden of proving its claim against Respondent or its surety. Balino v. Department of HRS, 348 So.2d
349 (Fla. 1st DCA 1977).
In the absence of rebuttal from Respondent, Petitioner proved indebtedness but failed to prove that the sale described in invoice No. 1061 for $2,612.80 occurred within the nine months preceding the filing of the complaint. Construed liberally, the proof adduced by Petitioner through the testimony of its bookkeeper and the documents attached to its complaint established that the sale described in invoice No. 1308 occurred on January 28, 1985, within the statutory nine month period. After deducting
$2,612.80 from the total sum owed, the indebtedness cognizable under the statute governing this proceeding equals $3,546.50.
RECOMMENDATION
Based on the foregoing, it is recommended that a Final Order be issued requiring Respondent Paul Pent, pay Petitioner
$3,546.50. The Final Order should specify that failure to comply will result in a requirement that Transamerica Insurance Company pay said sum to the Department of Agriculture and Consumer Services for distribution to Monticello Nursery.
DONE and RECOMMENDED this 1st day of May, 1986, in Tallahassee, Florida.
MARY CLARK, 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 1st day of May, 1986.
COPIES FURNISHED:
Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida 32301
John C. Cooper, Esquire Douglas, Cooper & Coppins, P.A.
211 East Call Street Tallahassee, Florida 32302-1674
Mr. Paul Pent
Pent Landscape Company 1660 Emerson Street
Jacksonville, Florida 32207
Transamerica Insurance Company 1150 South Olive Street
Los Angeles, California 90015
Joe W. Kight, Chief
Division of License and Bond Department of Agriculture and
Consumer Services Mayo Building
Tallahassee, Florida 32301
Ron Weaver, Esquire
Robert A. Chastain, Esquire
Department of Agriculture and Consumer Services
Mayo Building Room 513 Tallahassee, Florida 32301
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MONTICELLO NURSERY COMPANY )
OF FLORIDA, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 85-4177A
)
PAUL PENT, d/b/a PAUL PENT )
LANDSCAPE COMPANY, and ) TRANSAMERICA INSURANCE COMPANY, )
)
Respondents. )
)
CORRECTED RECOMMENDED ORDER
Final nearing in the above-styled action was held in Tallahassee, Florida on April 24, 1986, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.
Petitioner was represented by John C. Cooper, Esquire, 211 East Call Street, Tallahassee, Florida 32302-1674. Respondent was not represented and did not appear in person. Surety, Transamerica Insurance Company, likewise did not appear.
This corrected Recommended Order is entered sua sponte as provided in Rule 221-6.32, Florida Administrative Code. The Recommended Order previously entered on May 1, 1986, included an error in the computation of a nine-month filing period.
Accordingly, the following Findings of Fact, Conclusions of Law and Recommendation are substituted for the May 1, 1986, Recommended Order:
BACKGROUND
This proceeding arose when Petitioner filed its complaint on September 5, 1985, with the Department of Agriculture and Consumer Services alleging Respondent's indebtedness in the amount of
$6159.30. The complaint was amended on September 13, 1985 to change the Respondent's name from Dean Pent to Paul Pent.
An order was entered on November 15, 1985 by Agriculture Commissioner, Doyle Conner, accepting the sworn complaint of Petitioner, in the absence of a timely answer or request for hearing from the Respondent. The order did not become final, as Respondent then filed a timely request for this Section 120.57 Florida Statutes hearing.
At the hearing Petitioner presented evidence through the testimony of its bookkeeper, Sandy Mazza, and a composite exhibit consisting of the complaint, the amended complaint and invoices and letters attached to the complaint.
FINDINGS OF FACT
Petitioner, Monticello Nursery Company of Florida, Inc., is a corporation whose address is Post Office Box 190, Monticello, Florida. (Petitioner's Complaint)
Respondent, Paul Pent, d/b/a Paul Pent Landscape Company, is located at 1660 Emerson Street, Jacksonville, Florida. At the time of the transactions involved, Respondent was licensed as a dealer in agricultural products under License No. 3531. (Petitioner's Complaint, Order of Department of Agriculture dated November 15, 1985)
Corespondent, Transamerica Insurance Company as surety provided bond number 5182-39-34 for Respondent in the amount of
$4,750. (Petitioner's Complaint, Order of Department of Agriculture dated November 15, 1985)
Petitioner's complaint for $6,159.30 is based upon two invoices for nursery plants: Invoice 1060 in the amount of
$2,612.80, and Invoice 1308 in the amount of $6,109.30. From the total of $8,722.10 is deducted "payments and credit" of $2,562.80. (Petitioner's Complaint) The figures on the complaint and the attached invoices accurately reflect the statement of account for the subject transactions. (Testimony of Sandy Mazza)
Invoice No. 1060 is for several kinds of nursery plants and is dated 12/31/84. On the invoice the order date is 10/26/84 and the "ship date" is 12/07/84.
Invoice No. 1308 is for a quantity of crepe myrtle trees and is dated 1/31/85. The order date and "ship date" are both 1/28/85.
One invoice supports, and the other conflicts with the date of 12/31/84, stated on the face of the complaint as the "date of sale". The invoices are competent evidence as supported by the bookkeeper's testimony.
The finding in the November 15, 1955 order of the Department of Agriculture and Consumer Services that the sale totaling $6,159.30 was made on September 5, 1985, conflicts with both the complaint and the invoices and is unsupported by any evidence in the record.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this proceeding and the parties thereto pursuant to Sections 120.57(1) and 604.21(6) Florida Statutes.
Section 604.21 Florida Statutes describes a complaint and hearing procedure for claims of damage by breach of an agreement by a licensed dealer in agricultural products. Subsection 604.21(1) Florida Statutes provides:
604.21 Complaint; investigation:
hearing-
1) Any person claiming himself to be damaged by any breach of the
conditions of a bond or certificate of deposit assignment or agreement given by a licensed dealer in agricultural products as hereinbefore provided may enter complaint thereof against the dealers and against the surety, if any, to the department, which complaint shall be a written statement of the facts constituting the complaint. Such complaint shall be filed within months from the date of sale in instances involving direct sales or from the date on which the agricultural product was received by the dealer in agricultural products as agent, to be sold for the producer. (emphasis added)
Petitioner has the burden of proving its claim against Respondent or its surety. Balino v. Department of HRS, 348 So.2d
349 (Fla. 1st DCA 1977).
In the absence of rebuttal from Respondent, Petitioner proved indebtedness and proved that the sales occurred within the nine months preceding the filing of the complaint.
RECOMMENDATION
Based on the foregoing, it is recommended that a Final Order be issued requiring Respondent pay Petitioner $6,159.30. The Final Order should specify that failure to comply will result in a requirement that Transamerica Insurance Company pay said sum to
the Department of Agriculture and Consumer Services for distribution to Monticello Nursery.
DONE and RECOMMENDED this 6th day of May, 1986, in Tallahassee, Florida.
MARY CLARK, 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 6th day of May, 1986.
COPIES FURNISHED:
Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida 32301
John C. Cooper, Esquire Douglas, Cooper & Coppins, P.A.
211 East Call Street Tallahassee, Florida 32302-1674
Mr. Paul Pent
Pent Landscape Company 1660 Emerson Street
Jacksonville, Florida 32207
Transamerica Insurance Company 1150 South Olive Street
Los Angeles, California 90015
Joe W. Kight, Chief
Division of License and Bond Department of Agriculture and Consumer Services
Mayo Building
Tallahassee, Florida 32301
Ron Weaver, Esquire
Robert A. Chastain, Esquire
Department of Agriculture and Consumer Services
Mayo Building Room 513 Tallahassee, Florida 32301
Docket for Case No: 85-004177
Orders for Case No: 85-004177
