Judges: DONALD D. CONN
Agency: Department of Agriculture and Consumer Services
Latest Update: May 09, 1986
Summary: Respondent required to make full payment on remaining debt owed to petitioner because respondent failed to prove that the purchased trees contained citrus canker.
86-1071.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PLEASANT VIEW NURSERY, INC., and ) HILLSBOROUGH WHOLESALE NURSERY, INC., )
)
Petitioners, )
)
vs. ) CASE NO. 86-1071A
) SHELTON'S OF BRANDON, INC., and UNITED ) STATES FIDELITY AND GUARANTY COMPANY, )
)
Respondents. )
)
RECOMMENDED ORDER
A final hearing was held in this case in Tampa, Florida on May 2, 1986 before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:
Petitioners: Paul B. Boswell, Manager
1321 North Valrico Road Valrico, Florida 33594
Respondent: Arthur A. Yambor, President
Shelton's of Brandon, Inc. 1350 West Brandon Boulevard Brandon, Florida 33511
United States Fidelity and Guaranty Company, Co-Respondent, was not represented during the hearing, although duly noticed.
At the hearing each party introduced one exhibit. Paul B. Boswell was accepted as a qualified representative on behalf of Petitioners, and testified on their behalf. The President of Shelton's of Brandon, Inc., Respondent, Arthur A. Yambor, testified on behalf of Respondent. There was no transcript of the hearing and the parties did rot file proposed findings of fact.
FINDINGS OF FACT
On February 23 and April 19, 1985, Respondent purchased woody ornamental plants from Pleasant View Nursery for a total purchase price of
$650.50. The only payment on this account made by Respondent was $100 on November 15, 1985, leaving a balance due of $550.50.
On February 23 and March 16, 1985, Respondent purchased citrus trees from Hillsborough Wholesale Nursery for a total purchase price of $720.90. The only payment on this account made by Respondent was $150, leaving a balance due of $570.90.
Arthur A. Yambor, Respondent's President, is a licensed dealer in agricultural products under the provisions of Sections 604.15 - 604.30, F.S.,
and is bonded through United States Fidelity and Guaranty Company, Co- Respondent, as required by Section 604.19.
Petitioners filed their complaints concerning this matter with the Department of Agriculture within nine months from the date of sale.
Payment in full for the sales in question was to have been made within thirty days of the date of each sale.
Respondent admits that the sales were made, and that Respondent did receive the agricultural products from Petitioner, for which these claims are made. However, Arthur A. Yambor testified that Respondent has not made full payment on these accounts because he believes the citrus trees purchased from Hillsborough Wholesale Nursery were infected with citrus canker which resulted in these, as well as other trees in his nursery, having to be destroyed. He has refused to make further payment to Petitioners due to the financial loss he sustained as a result of, what he believes to have been, infected trees he received from Hillsborough Wholesale Nursery. However, no proof was offered on behalf of Respondent that, in fact, trees purchased from Hillsborough Wholesale Nursery were infected. While Respondent did receive citrus canker compensation, there is no evidence that the canker resulted from citrus trees purchased from Hillsborough Wholesale Nursery.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), F.S. The Department of Agriculture has the authority to adjudicate the amount of indebtedness due to be paid by an agricultural products dealer to a producer. Section 604.21(4), F.S.
Section 604.21(1), F.S., provides that any person claiming to be damaged by any breach of an agreement given by a licensed dealer in agricultural products may file a complaint against such dealer with the Department of Agriculture. Petitioners' claims have been filed under the provisions of Sections 604.15 to 604.30, F.S., and Petitioners claim that Respondent still owes them a total of $1,121.40 for purchases during February, March and April, 1985.
It is clear that the citrus trees were not purchased from Pleasant View Nursery, but rather from Hillsborough Wholesale Nursery. Respondent's purchase of woody ornamentals from Pleasant View Nursery could not have involved citrus canker, and since Respondent's only defense for nonpayment is that citrus trees purchased from Petitioners were infected with citrus canker, Respondent has not established a valid reason for his refusal to pay the claim of Pleasant View Nursery in the amount of $550.50.
Respondent has also totally failed to establish that the citrus canker that infected his nursery resulted from the citrus trees he purchased from Hillsborough Wholesale Nursery. The testimony of Respondent's President alone does not establish this fact. Therefore, Respondent has not presented a valid defense for nonpayment of $570.90 owed to Hillsborough Wholesale Nursery.
Petitioners have proven, and Respondent has admitted, that the sales in question took place and the agricultural products included in these claims were received by Respondent.
RECOMMENDATION
Based upon the foregoing, it is recommended that the Department of Agriculture enter a Final Order requiring Respondent to make full payment on the remaining indebtedness claimed by Petitioners.
DONE and ENTERED this 9th day of May, 1996 in Tallahassee, Florida.
DONALD D. CONN, 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 9th day of May, 1986.
COPIES FURNISHED:
Douglas A. Holmberg, President Pleasant View Nursery &
Hillsborough Wholesale Nursery 1321 N. Valrico Road
Valrico, Florida 33594
Paul B. Boswell, Manager 1321 N. Valrico Road Valrico, Florida 33594
Arthur A. Yambor, President Shelton's of Brandon, Inc. 1351 W. Brandon Boulevard Brandon, Florida 33511
United States Fidelity and Guaranty Company
Post Office Box 1138 Baltimore, Maryland 21203
Joe Kight, Chief
Bureau of License and Bond Room 418, Mayo Building Tallahassee, Florida 32301
Robert A. Chastain, Esquire Department of Agriculture and
Consumer Services Mayo Building
Tallahassee, Florida 32301
Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida 32301
Docket for Case No: 86-001071
Orders for Case No: 86-001071
| Issue Date |
Document |
Summary |
|
Nov. 19, 1986 |
Agency Final Order
|
|
|
May 09, 1986 |
Recommended Order
|
Respondent required to make full payment on remaining debt owed to petitioner because respondent failed to prove that the purchased trees contained citrus canker.
|
