STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

QUAIL ROOST NURSERY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-3134A

) 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: Keith Stuart Weyrich

General Manager

Quail Roost Nursery 15100 Quail Roost Drive Miami, Florida 33187

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 dated March 21, 1988, Petitioner sought to recover the sum of $3384 from Respondents. By Answer of Respondent dated May 30, 1988, Respondent BSR Landscape and Irrigation Contractors, Inc. denied the existence of the indebtedness. (All references below to "Respondent" are to BSR Landscape and Irrigation Contractors, Inc.) Respondent requested a formal hearing.

Petitioner presented one witness and offered into evidence four exhibits. Respondent presented three witnesses and offered into evidence four exhibits. All exhibits were admitted into evidence, except Petitioner's Exhibit 4.

Petitioner withdrew Petitioner's Exhibit 5 after offering it into evidence.

Petitioner and Respondent each 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 January 8, 1988, Jerome Allison, a truck driver employed by Respondent, picked up 47 pigeon plum trees from Petitioner's yard in Miami. Petitioner sold these trees to Respondent for the price of $90 per tree, or

   $4230, for a total of $4441.50 including tax. Mr. Allison delivered a check to Petitioner in the amount of $1057.50, leaving a balance of $3384.

   
   

3. Respondent had not specified to Petitioner that the trees be of any particular grade. Petitioner did not sell the trees by reference to grade and guaranteed only that the trees were true to their name and were in good healthy condition.

   
   

4. Petitioner brought the trees to the trailer for loading. Two of Petitioner's employees drove a tractor which carried the trees two at a time. In the course of loading, Petitioner's employees allowed the trees to rub together, damaging the bark of many of the trees. Mr. Allison tried unsuccessfully to alert one of Petitioner's managers to the problem, but was unable to find anyone in the office. Mr. Allison's warning to one of the tractor operators was ignored. Mr. Allison's illiteracy prevented him from noting this damage on the sales order that he signed acknowledging receipt of the trees.

   
   

5. Upon receipt of the trees at the Key West jobsite, Respondent's president, Alberto Ribas, who was director of the project for which the trees had been purchased, noticed the damage, but decided to plant the trees anyway. Respondent pruned the trees in order to repair as much of the damage as possible.

   
   

6. Following the delivery of the trees, the first contact between Petitioner and Respondent took place on February 15, 1988, when Keith Weyrich, general manager of Petitioner, called Mr. Ribas and asked when Petitioner was going to be paid. Mr. Ribas informed Mr. Weyrich that there had been a problem with the trees.

   
   

7. Shortly prior to this conversation, a representative of the Florida Department of Transportation, which was Respondent's customer on the subject project, informed Mr. Ribas that they were rejecting all of the pigeon plum trees due to their poor quality.

   
   

8. In early May, 1988, the representative of the Florida Department of Transportation announced its final decision. It rejected 23 trees and accepted seven trees. The remaining 17 trees were reclassified from Florida No. 1, which was evidently specified in the contract between Respondent and the Florida Department of Transportation, to Florida No. 2, which is a lower quality.

   
   

9. Of the 47 trees delivered to Respondent, 24 were good healthy trees and

   23 were not.

   CONCLUSIONS OF LAW

   
   

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

    
    

11. 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.

    
    

12. 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.

    
    

13. Respondent must pay Petitioner for the 24 good healthy trees that Petitioner delivered to Respondent. Although 17 of these trees failed to meet the specifications of the agreement between Respondent and the Florida Department of Transportation, such specifications were not part of the agreement between Petitioner and Respondent. The remaining 23 trees were not good healthy trees, as required by the contract between Petitioner and Respondent.

    
    

14. Respondent's claim for an offset for incidental expenses for labor in removing the 23 nonconforming trees fails because of Respondent's failure to give Petitioner timely notice of the nonconforming quality of these trees so that Petitioner had an opportunity to replace them. Respondent either should have mitigated its damages by not planting the 23 nonconforming trees or given Petitioner a chance to participate in the decision to risk rejection by the Florida Department of Transportation of these trees of apparently poor quality.

    
    

15. The price for 24 trees at $90 per tree is $2160, which, plus tax, totals $2268. Less the $1057.50 already paid, the net due Petitioner is

$1210.50.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered requiring Respondent to pay Petitioner the sum of $1210.50.

DONE and RECOMMENDED this 5th day of October, 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 5th day of October, 1988.

APPENDIX

Treatment Accorded Respondent's Proposed Findings 1-3 and 12. Adopted.

4. Adopted in substance, although not all trees were

significantly damaged.

5 and 8-9. Adopted in substance.

6. Rejected as repetitious.

7 and 11. Rejected as against the greater weight of the evidence. Paragraph 7 also rejected as irrelevant to the extent that Respondent gave Petitioner the chance to remove the trees after they were planted.

10. Rejected as irrelevant.

Treatment Accorded Petitioner's Proposed Findings

1. and 12. Rejected as irrelevant.

2. and 7. Adopted.

3-5. Adopted in substance.

6. Rejected as legal conclusion and against the greater weight of the evidence.

8. Rejected as repetitious.

9-10. Rejected as legal conclusion.

11. Rejected as against the greater weight of the evidence.

COPIES FURNISHED:

Keith Stuart Weyrich General Manager

Quail Roost Nursery, Inc. 15100 Quail Roost Drive Miami, Florida 33187

Emilia Diaz-Fox, Esquire Courthouse Tower

44 West Flagler Street Suite 350

Miami, Florida 33130

(Post-Hearing for Petitioner)

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: 88-003134

Orders for Case No: 88-003134