STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTHERN TREES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-O532A

) BSR LANDSCAPE & IRRIGATION ) CONTRACTORS, INC. and UNITED ) STATES FIDELITY & GUARANTY ) COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on August 17, 1988, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The representatives of the parties were as follows: For Petitioner: Sandy D. Couey, Owner

Southern Trees, Inc.

Route 1 Box 60-J

High Springs, Florida 32643

For Respondent: Stuart H. Sobel, Esquire

Sobel & Sobel, P.A.

155 South Miami Avenue, Penthouse Miami, Florida 33130

No appearance for U.S. Fidelity & Guaranty Company

BACKGROUND

By complaint filed with the Florida Department of Agriculture and Consumer Services, a copy of which was not transmitted to the Division of Administrative Hearings, Petitioner sought to recover the sum of $2058 from Respondents. By Answer of Respondent dated December 4, 1987, Respondent BSR Landscape and Irrigation Contractors, Inc. admitted $1002.88 of the indebtedness and denied the remainder. (All references below to Respondent are to BSR Landscape and Irrigation Contractors, Inc.) Respondent requested a formal hearing.

Petitioner presented two witnesses and offered into evidence one exhibit.

Respondent presented two witnesses and offered into evidence four exhibits. All exhibits were admitted into evidence.

Respondent filed a proposed recommended order. Treatment accorded the proposed findings of fact is detailed in the Appendix.

FINDINGS OF FACT

1. Respondent is a dealer in agricultural products and is licensed by the Department of Agriculture and Consumer Services, under Sections 604.15-604.34, Florida Statutes.

   
   

2. On or about April 29, 1987, Steve Brill, who is a project manager and landscape architect employed by Respondent, placed an order with Petitioner, on behalf of Respondent, for various trees. The order was never reduced to writing by Respondent.

   
   

3. Respondent ordered six dogwoods, one 18-foot ilex, three 13-foot ilex,

   14 laurel oaks, and two ligustrums. Sandra Couey, who took the telephone order for Petitioner, informed Mr. Brill that he could have a higher quality $350 ligustrum or a lower quality $200 ligustrum. He chose the cheaper tree. Mr. Brill requested 18-foot dogwoods, but Ms. Couey informed him that the largest she had was 12 feet.

   
   

4. On May 14, 1987, Respondent's driver picked up the trees at Petitioner's nursery. Ms. Couey had removed the ilex from the shipment because these trees, which had been purchased by her from another nursery, were of poor quality. The driver left a check in the amount of $3003, which, by prior agreement of the parties, was not to be deposited for 30 days. Alberto Ribas, president of Respondent, had asked Ms. Couey on the prior day to hold the check until the customer paid Respondent.

   
   

5. Immediately upon receiving the shipment, Mr. Brill and Mr. Ribas noticed that the dogwoods were 12 feet and that the quality of the ligustrums were, in Mr. Brill's words, "shaky."

   
   

6. Petitioner and Respondent did not communicate again until June 3, 1988, when Ms. Couey telephoned Mr. Ribas to see if she could deposit the check one week early.

   
   

7. During the June 3 conversation or shortly thereafter, Mr. Ribas first complained to Ms. Couey about the quality of the trees. He stopped payment on the check and advised Ms. Couey that he intended to procure replacement trees elsewhere, for which Petitioner would be liable, if she did not replace the trees within seven days.

   
   

8. Respondent ordered and Petitioner delivered six dogwood trees for a total agreed-upon price of $720, 14 laurel oak trees for a total agreed-upon price of $840, and two ligustrum trees for a total agreed-upon price of $400, which, plus tax, comes to a total of $2058. To date, Respondent has paid nothing of this amount.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Sections 120.57(1) and 604.21(6), Florida Statutes.

   
   

10. Every dealer in agricultural products must be licensed by the Department of Agriculture and Consumer Services. Section 604.17, Florida Statutes. As a condition to obtaining such license, the dealer must post a bond, or certain other good security, to secure its payment to producers for all

    agricultural products purchased. Sections 604.19 and 604.20, Florida Statutes. The trees in question are agricultural products. Section 604.15(3), Florida Statutes.

    
    

11. Any person claiming to have been damaged by the breach of the conditions of a bond given by a licensed agricultural dealer, such as Respondent, may file a complaint against the dealer and its surety. Section 604.21, Florida Statutes.

    
    

12. Respondent has failed to pay Petitioner for the trees that it ordered and Petitioner delivered. Respondent's claim that the sizes and quality of the trees were wrong is not entitled to any weight due to Respondent's failure to assert this claim promptly. Petitioner supplied what Respondent ordered. Any problems between Respondent and its customers are of no concern to Petitioner. The contract between Petitioner and Respondent did not incorporate any contracts between Respondent and its customers nor any terms or conditions of such contracts.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered requiring Respondent to pay Petitioner the sum of $2058.

DONE and RECOMMENDED this 30th day of September, 1988, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988.

APPENDIX

Treatment Accorded Respondent's Proposed Findings 1-2. Adopted.

3. First sentence adopted. Second sentence rejected as irrelevant. The

dogwoods met the requirements of the contract or agreement between Petitioner and Respondent, regardless whether they met the requirements of Respondent's job.

4-5. Adopted in substance.

6-7. Rejected as irrelevant and against the greater weight of the evidence.

8. Adopted in substance.

COPIES FURNISHED:

Sandy D. Couey, Owner Southern Trees, Inc. Route 1

Box 60-J

High Springs, Florida 32643

Stuart H. Sobel, Esquire Sobel & Sobel, P.A. Penthouse

155 South Miami Avenue Miami, Florida 33130

United States Fidelity & Guaranty Company Post Office Box 14143

Tampa, Florida 33623

Clinton H. Coulter, Jr., Esquire Department of Agriculture

Consumer Services Mayo Building

Ben Pridgeon Bureau of License

& Bond

Mayo Building

Tallahassee, Florida 32399

Robert Chastain General Counsel

Department of Agriculture and Consumer Services

Mayo Building, Room 513 Tallahassee, Florida 32399-0810

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-0810

Docket for Case No: 88-000532

Orders for Case No: 88-000532