STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GRAMLING NURSERY, INC., )

)

)

Petitioner, )

)

vs. ) CASE NO. 90-5300A

) LANDSCAPE & WATER AMENITIES, INC. ) and AMERICAN STATES INSURANCE ) COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 26, 1990, in Tampa, Florida.

APPEARANCES

For Petitioner: Hugh M. Gramling, President

Gramling Nursery, Inc. 3402 South Redman Parkway Plant City, Florida 33566

For Respondents: No appearance.

STATEMENT OF THE ISSUE

Whether or not the Respondent failed to remit to Petitioner a payment for nursery products received.

PRELIMINARY STATEMENT

By sworn complaint dated November 8, 1989, Petitioner filed a sworn complaint alleging that Respondent was justly indebted to it for agricultural products (nursery plants) and despite its efforts to collect from Respondent, Landscape & Water Amenities, Inc., they were unsuccessful. By its sworn answer dated March 12, 1990, Respondent, by its counsel, Michael J. Marees, admitted to owing Petitioner the principal sum of $3,958.03 but denies any claim for interest which it contends exceeded the interest specified under Section 687.01, Florida Statutes. Petitioner was unable to collect the principal indebtedness and on August 23, 1990, the Florida Department of Agriculture and Consumer Services transferred this matter to the Division of Administrative Hearings for the conduct of a formal hearing. Following receipt of responses from the parties, on October 3, 1990, the case was set for hearing for October 26, 1990, and was heard as scheduled.

At the hearing, Petitioner's vice president, Hugh M. Gramling, appeared and testified. Also present but who did not testify was Nick Guagliardo, a financial analyst for the Department of Agriculture and Consumer Services.

Petitioner's Exhibits 1-7 were offered and received in evidence at the hearing.

FINDINGS OF FACT

Based upon my observation of the witness and his demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings:

1. Petitioner, Gramling Nursery, Inc. (Gramling), is a wholesale nursery (producer) which sells landscape plants and other nursery products from its facility located at 3402 South Redman Parkway, Plant City, Florida.

   
   

2. Respondent, Landscape & Water Amenities, Inc. (LWA or Respondent), is a landscaper which maintains its principle office at 2453 South Third Street, Jacksonville Beach, Florida.

   
   

3. During times material, LWA was the holder of agricultural bond number 06827 issued through American States Insurance Company in the amount of

   $10,000.00. Respondent, American States, is a surety company securing payments to producers of agricultural products supplied to LWA.

   
   

4. On May 9, 1989, LWA submitted an application for credit to Petitioner. Petitioner approved LWA's credit application and issued a charge account with the following terms:

   
   

   All bills are due when the material is delivered and become past due the 10th of the month following the date of purchase. Delinquent accounts are subject to one and one-half percent per month (18% annually) service charge. Should any collection procedures become necessary, all costs, including reasonable attorney fees, are borne by the customer and venue will be in Hillsborough County. It is a condition of your account [that] you maintain an agricultural bond as required by state law and the bond amount will set your credit limit.

   
   

5. On July 13 and July 28, 1989, Petitioner sold to LWA nursery plants on invoice numbers 24796 and 24834 in the respective amounts of $4,038.07 and

   $140.23, for the total sum of $4,178.30.

   
   

6. Petitioner made at least six telephone calls in an effort to collect the payment for the nursery plants which it delivered to LWA and these efforts were all unsuccessful. By letter dated October 19, 1989, Petitioner forwarded, by certified mail, return receipt requested, a demand letter to Frank Timmons, president of LWA, for full payment of $4,397.81 to be received by October 27, 1989. Petitioner advised LWA that in the event that payment was not received, Petitioner would file against LWA's agricultural bond and take other necessary legal action to collect the debt.

   
   

7. By letter dated November 21, 1989, Petitioner received a letter from Michael J. Marees, Esquire, which was addressed to all creditors of Landscape and Water Amenities, Inc., advising that his law firm had been retained to assist LWA "in winding up its affairs and conducting a voluntary liquidation of

   its remaining assets." In attempting to liquidate the remaining assets, to the extent that funds were reportedly available, attorney Marees made an across the board distribution of ten percent of the outstanding debt owed by LWA to all of its creditors. In this regard, Petitioner received a check in the amount of

   $439.78.

8. By letter dated January 29, 1990, Petitioner advised LWA that the above-referred payment was applied to LWA's account in the form of interest ($401.82) and principal ($37.96) leaving a balance due on that date of

   $4,141.34.

9. Petitioner received no further communiques from either LWA or American States.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Sections 120.57(1) and 604.15-604.30, Florida Statutes.

    
    

11. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

12. Petitioner is a producer in Florida, pursuant to Section 604.15(5), Florida Statutes.

    
    

13. Respondent, Landscape & Water Amenities, Inc., is a licensed dealer in agricultural products in Florida and was so licensed during times material. Respondent was, during times material, the holder of a surety bond issued by American States Insurance Company.

    
    

14. Landscape & Water Amenities, Inc. received nursery stock from Petitioner which was visually inspected for plant pests and the stock met the minimum requirements of Chapter 581, Florida Statutes.

    
    

15. As of July 28, 1989, Respondent, Landscape & Water Amenities, Inc., received nursery plants invoiced for $4,178.30 from Petitioner.

    
    

16. On November 21, 1989, Petitioner received a partial payment from Respondent LWA, in the amount of $439.78, which amount was applied to the account of Respondent LWA leaving an outstanding balance of $4,141.31, as of January 29, 1990. Petitioner did not receive any other payment from Respondents.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

The Department of Agriculture and Consumer Services, Bureau of License and Bond, issue a Final Order finding that Respondent, Landscape & Water Amenities, Inc., owes Petitioner the sum of $4,141.34, plus interest accruing at the rate of one and one-half percent per month from January 29, 1990. In the event Respondent LWA fails to pay this sum the Respondent surety shall be required to pay that amount from its agricultural bond pursuant to Section 604.21(8), Florida Statutes.

DONE and ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 30th day of November, 1990.

Copies furnished:

Hugh M. Gramling, President Gramling Nursery, Inc.

3402 South Redman Parkway Plant City, Florida 33566

Clinton H. Coulter, Jr., Esquire Senior Attorney

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32399-0800

Frank Timmons

Landscape & Water Amenities, Inc. 10445 Atlantic Boulevard

Jacksonville, Florida 32225-6723

American State Insurance Company

500 North Third Street Indianapolis, Indiana 46204

Mallory E. Horne, Esquire General Counsel

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32399-0800

Brenda Hyatt, Chief

Bureau of License and Bond Department of Agriculture and

Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

Doyle E. Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-005300

Orders for Case No: 90-005300