STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HILLSIDE SOD FARMS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 89-4130A

)

1. J. HARPER LANDSCAPING )

   ENTERPRISES, INC., )

   )

   Respondent. )

   
   

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on November 30,

   1989 in Orlando, Florida. The following appearances were entered:

   
   

   APPEARANCES

   
   

   For Petitioner: Avery P. Wisdom,

   Vice President

   Hillside Sod Farms, Inc. 1620 East State Road 46 Geneva, Florida

   
   

   For Respondent: Simon J. Harper, President

   S. J. Harper Landscaping Enterprises, Inc.

   205 Zenith Point Geneva, Florida

   
   

   For Co-Respondent Centrust Savings

   Bank: no appearance STATEMENT OF THE ISSUES

   Whether Respondent owes Petitioner $534.24 on account for sod sold and delivered at the request of Respondent.

   
   

   PRELIMINARY STATEMENT

   
   

   On April 21, 1989, Avery P. Wisdom, Petitioner's Vice President, filed a complaint with the Florida Department of Agriculture and Consumer Services alleging that Respondents owed

   Petitioner the sum of $534.24 for sod sold and delivered. Respondent filed an answer denying the claim and raised the

   affirmative defense of failure to deliver. Subsequently, this matter was referred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

   At the hearing, Petitioner presented the testimony of

   two witnesses and offered three composite exhibits in evidence. Respondent presented the testimony of two witnesses and did not offer any exhibits in evidence.

   
   

   No transcript of the hearing was provided by the

   parties. Neither Petitioner nor Respondent timely filed proposed findings of fact, and no findings have been receive at the time of the preparation of this recommended order.

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner, Hillside Sod Farms, Inc., is a producer of agricultural products, grass sod.

      
      

   2. Respondent, S. J . Harper Landscaping Enterprises, Inc., is a dealer of such products in the normal course of its landscaping business activity.

      
      

   3. Petitioner generally deals on a cash basis with customers, unless the customer is licensed by the Department of Agriculture and Consumer Services for the sale of agricultural products. Customers who are licensed may maintain an open account

      status with Petitioner.

      
      

   4. Respondent is licensed by the Department. The Respondent has maintained an open account with Petitioner since 1986. Petitioner sold Respondent grass sod by the truck load for various projects, and was given an invoice therefor. Under the terms of the account, payment was due in full the week following receipt of the sod.

      
      

   5. On November 21, 1988, including invoice number

      12284, Respondent's account balance was $2,098.80. On November 25, 1988, the account balance was $3,129.12. On December 12, 1988, Respondent paid on the account the sum of $2,594.88, leaving a balance due, owing and unpaid of $534.24.

      
      

   6. Respondent's alleged that in early November, 1988 several trucks loads that were accepted by Respondent were short of sod by approximately eight pallets (each pallet contains 400 square feet of sod) Simon J. Harper, Respondent'S president,

      reported this fact to Petitioner's foreman, Larry Poole, at night after the work day. He did not reject the trucks with the lesser amount of sod on them, but accepted them. Respondent did not file a complaint or objection to the billing, verbally or in writing, to an officer in the Petitioner's company, although he had dealt with the company for years. Respondent estimated the

      amount of sod it believed they had been shorted and sent a check for the unpaid balance, less the charges for shorted sod. The amount withheld was the sum of

      $534.24.

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the

      parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

      
      

   8. Dealers of agricultural products are licensed by

      the Department of Agriculture and Consumer Services. Section

      604.17 Florida Statutes. Dealers must post a bond or other security as a precondition to licensure, insuring payment to producers for all agricultural products purchased. Section

      604.19 and 604.20, Florida Statutes. The grass sod in question is an agricultural product. Section 604.15(3), Florida Statutes.

      
      

   9. 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.

      
      

   10. Respondent must pay Petitioner for the amount owed on its account. Although Respondent claimed that Petitioner's employees omitted about eight pallets of sod on several trucks selected for delivery to Respondent, Respondent failed to give Petitioner proper and timely notice of the shortage so that Petitioner had an opportunity to replace the missing sod, or otherwise adjust the account. Instead, Respondent merely withheld payment of the amount it estimated was short.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a Final Order be entered requiring Respondent to pay to the Petitioner the sum of $534.24.

DONE AND ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1990.

COPIES FURNISHED:

Avery P. Wisdom Vice President

Hillside Sod Farms, Inc. 1620 East State Road 46

Geneva, FL 32732

Simon J. Harper President

S. J. Harper Landscaping Enterprises, Inc.

205 Zenith Point Geneva, FL 32732

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

Consumer Affairs Mayo Building

Tallahassee, FL 32399-0800

Ben H. Pridgeon, Jr.

Chief

Bureau of License and Bond Department of Agriculture and Consumer Affairs

Mayo Building

Tallahassee, FL 32399-0800

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, FL 32399-0810

Mallory Horne General Counsel

515 Mayo Building Tallahassee, FL 32399-0800

Docket for Case No: 89-004130

Orders for Case No: 89-004130