STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PLEASANT VIEW NURSERY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 92-3032A

)

K. S. ENTERPRISES, INC., d/b/a ) THE LANDSCAPE COMPANY and FIRST ) COAST WHOLESALE GROWERS and )

LAWYERS SURETY CORPORATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on August 3, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Susan Goben

Office Manager

Pleasant View Nursery, Inc. 1321 North Valrico Road Valrico, Florida 33594

For Respondents: No Appearance

STATEMENT OF THE ISSUES

Whether the Respondents should be required, pursuant to Section 604.21, Florida Statutes, to pay the Petitioner $701.88 for agricultural products.

PRELIMINARY STATEMENT

On June 18, 1991, the Petitioner, Pleasant View Nursery, Inc. (hereinafter referred to as "Pleasant View"), filed a complaint with the Florida Department of Agriculture and Consumer Services (hereinafter referred to as the "Department"). The Petitioner filed the complaint seeking payment of $6,741.60 from the Respondents, K. S. Enterprises, Inc., d/b/a The Landscape Company and First Coast Wholesale Growers (hereinafter referred to as "K. S. Enterprises"), and Lawyers Surety Corporation. By letter dated July 1, 1991, Pleasant View notified the Department that a payment of $500.00 had been received from K. S. Enterprises. Therefore, the amount claimed to be owed was reduced to $6,241.60.

By letters dated August 1, 1991, the Department notified K. S. Enterprises and Lawyers Surety Corporation of the amended complaint filed by the Pleasant View. No response to the notice of amended complaint was received from either of the Respondents.

By letter dated August 21, 1991, Pleasant View notified the Department that it had received another payment from K. S. Enterprises. Pleasant View represented that the remaining unpaid balance of K. S. Enterprises' obligation to Pleasant View was $701.88.

On April 15, 1992, the Department entered an Order in this matter. The Department ordered that K. S. Enterprises pay $701.88 to Pleasant View. K. S. Enterprises responded to the Department's Order by letter dated April 20, 1992.

By letter dated May 18, 1992, the Department informed K. S. Enterprises that the matter was being referred to the Division of Administrative Hearings. By separate letter dated May 18, 1992, the Department requested that the Division of Administrative Hearings conduct proceedings pursuant to Chapter 120, Florida Statutes.

All parties were informed by an Initial Order of the opening of this case and were ordered to provide information concerning the scheduling of the final hearing of this matter. The parties were informed that the final hearing would be conducted in Tallahassee, Florida, if they did not respond to the Initial Order. The parties did not respond to the Initial Order.

On July 1, 1992, the final hearing of this matter was scheduled to commence at 2:00 p.m., August 3, 1992. The parties were informed that the hearing would be conducted in Tallahassee, Florida.

On Friday, July 31, 1992, the undersigned contacted Pleasant View and attempted to contact K. S. Enterprises to determine if the parties intended to appear at the final hearing. Pleasant View's representative informed the undersigned that she intended to appear. After numerous unsuccessful attempts to contact K. S. Enterprises, the undersigned gave Pleasant View's representative the option of appearing in person at the final hearing in Tallahassee or participating in the hearing by telephone. These options were offered because of concern as to whether the Respondents would appear at the hearing. Due to this concern, the undersigned decided to give Pleasant View's representative an opportunity to avoid traveling to Tallahassee. Pleasant View's representative elected to participate in the hearing by telephone.

On August 3, 1992, after waiting until approximately 2:20 p.m., the final hearing was commenced without K. S. Enterprises and Lawyers Surety Corporation. The hearing ended at approximately 2:50 p.m. At no time during this period of time did either Respondent appear or notify the undersigned that the Respondents were unable to appear. To date, neither Respondent has informed the undersigned of the reason for their failure to appear or requested an opportunity to be heard.

After giving the Respondents a reasonable opportunity to arrive at the final hearing late, the final hearing proceeded without the Respondents.

Pleasant View, having the burden of proof in this case, presented the testimony of David J. Twiss and Susan Goben. Six exhibits were also offered and accepted into evidence.

A transcript of the final hearing has been filed. Pleasant View has filed a proposed recommended order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. Pleasant View Nursery, Inc., is a corporation located in Valrico, Florida.

   
   

2. K. S. Enterprises, Inc., d/b/a The Landscape Company and First Coast Wholesale Growers, is a corporation located in Jacksonville, Florida.

   
   

3. K. S. Enterprises, at the time of the transaction involved in this proceeding, was licensed in Florida as a dealer in agricultural products.

   
   

4. Lawyers Surety Corporation provided Surety Bond Number FLA-390042 (hereinafter referred to as the "Bond"), in the amount of $10,000.00 in support of K. S. Enterprises' license. The conditions and provisions of the Bond assure proper accounting and payment to producers, their agents or representatives for agricultural products purchased by K. S. Enterprises.

   
   

5. On December 31, 1990, Pleasant View sold to K. S. Enterprises nursery plants produced by Pleasant View. The nursery plants were provided to, and accepted by, K. S. Enterprises.

   
   

6. In consideration for the nursery plants sold to K. S. Enterprises on December 31, 1990, K. S. Enterprises agreed to pay Pleasant View the sum of

   $6,741.60 within 30 days from date of sale.

   
   

7. K. S. Enterprises also agreed to the following terms of payment:

   
   

   We extend credit to few customers because of the tremendous capital required to carry it, because of the extensive cost of borrowing that capital. All accounts 30 days past due will be charged 1 1/2%. . . .

   
   

8. A bill for payment for the plants purchased by K. S. Enterprises was sent to K. S. Enterprises the first week of January, 1991. No payment was made by K. S. Enterprises.

   
   

9. K. S. Enterprises was billed again during the first week of February, 1991. No payment was made by K. S. Enterprises during the month of February.

   
   

10. Interest of $101.12 attributable to the month of January, 1991, and

    $102.61 attributable to the month of February, 1991, was added to K. S. Enterprises account.

    
    

11. Another bill was sent to K. S. Enterprises in March, 1991. On or about March 18, 1991, K. S. Enterprises paid $500.00 to Pleasant View. The payment was credited against the principal outstanding and not against interest in order to reduce the amount of interest that would accrue on the remaining indebtedness.

    
    

12. Pleasant View continued to bill K. S. Enterprises each month for the balance due from K. S. Enterprises. Accrued interest was added to K. S. Enterprises' account each month.

13. By August, 1991, the total amount of interest due from K. S. Enterprises was $701.88. The total amount remaining unpaid for the plants sold to K. S. Enterprises was $6,241.60.

    
    

14. On or about June 19, 1991, a letter was mailed to K. S. Enterprises notifying K. S. Enterprises of Pleasant View's intent to file a complaint with the Department. K. S. Enterprises received the notice on or about June 25, 1991.

    
    

15. On or about June 19, 1991, Pleasant View filed the complaint with the Department. The complaint was filed within six months after the date of the sale to K. S. Enterprises.

    
    

16. Subsequent to the Department sending notice to K. S. Enterprises of the complaint, K. S. Enterprises paid Pleasant View $6,241.60.

    
    

17. On or about August 13, 1991, Pleasant View received the payment of

    $6,241.60 from K. S. Enterprises. Pleasant View applied the payment first to the amount of interest that had accrued ($701.88) leaving $5,339.72 ($6,241.60 payment less $701.88 applied to interest) to apply against the remaining indebtedness. Applying the remaining $5,339.72 toward the remaining $6,241.60 owed for the plants left an unpaid balance of $701.88. These actions were taken pursuant to established policy of Pleasant View.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991).

    
    

19. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    249 (Fla. 1st DCA 1977). In this proceeding it is Pleasant View that is asserting the affirmative: that the Respondents should be required to pay Pleasant View $701.88 for nursery plants. Therefore, the burden of proving entitlement to the payment was on Pleasant View.

    
    

20. The evidence established that K. S. Enterprises was a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. As such, K. S. Enterprises was required to be, and was, licensed by the Department pursuant to Section 604.17, Florida Statutes. As a requirement of licensing, K.

    S. Enterprises had to show the Department evidence of a surety bond or a certificate of deposit in accordance with Section 604.20, Florida Statutes, and Rule 5H-1.01, Florida Administrative Code.

    
    

21. K. S. Enterprises was bonded by Lawyers Surety Corporation in the sum of $10,000.00 at all times pertinent to this case.

    
    

22. Pleasant View was a "producer" of agricultural products as defined in Section 604.15(5), Florida Statutes. Pleasant View filed a complaint against K.

    S. Enterprises within the time required by Section 604.21, Florida Statutes, alleging, among other things, that K. S. Enterprises had failed to pay for "agricultural products" as defined in Section 604.15(3), Florida Statutes, sold and delivered to K. S. Enterprises in the amount of $701.88 (as amended).

23. The bond required by Section 604.20, Florida Statutes, is to be:

    
    

    . . . conditioned to secure the faithful accounting for and payment to producers . . . of the proceeds of all agricultural products handled or purchased by such dealer.

    
    

24. Payment may required by the Department from a bond to any person claiming "any breach of the conditions of a bond . . . ." Section 604.21(1), Florida Statutes.

    
    

25. The facts of this case establish that K. S. Enterprises is indebted to Pleasant View in the amount of $701.88 as a result of a sale of agricultural products. At issue is whether the outstanding amount owed by K. S. Enterprises is an amount which may be collected pursuant to the terms of K. S. Enterprises' bond--is the outstanding balance part of the "proceeds of . . . agricultural products . . . " purchased by K. S. Enterprises?

    
    

26. The evidence failed to prove that the application of K. S. Enterprises' last payment to Pleasant View was inconsistent with the terms of their agreement or Pleasant View's general policy. Therefore, it is concluded that Pleasant View properly applied the last payment received from K. S. Enterprises against outstanding interest owed by K. S. Enterprises and then applied the remainder of the payment toward the outstanding amount owed for agricultural products.

    
    

27. Consequently, the remaining balance of $701.88 was for agricultural products and may properly be collected from K. S. Enterprises or, it K. S. Enterprises fails to pay the outstanding indebtedness, against K. S. Enterprises' Bond.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order requiring that K. S.

Enterprises, Inc., pay the sum of $701.88 to Pleasant View Nursery, Inc. It is further

RECOMMENDED that, should K. S. Enterprises, Inc., fail to comply with the Final Order, that Lawyers Surety Corporation should be called upon to pay the sum of $701.88 to Pleasant View Nursery, Inc., pursuant to Section 604.21, Florida Statutes.

DONE and ENTERED this 25th day of September, 1992, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Case Number 92-3032A

Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1992.

APPENDIX

Pleasant View has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Respondents did not file a proposed recommended order.

Pleasant View's Proposed Findings of Fact

1. Hereby accepted.

2. Accepted in finding of fact 5.

3. Accepted in findings of fact 6-7.

4. Accepted in findings of fact 8-9 and 11-12.

5. Accepted in findings of fact 14-15.

6. Accepted in findings of fact 13 and 17.

7. Hereby accepted.

COPIES FURNISHED:

Susan Goben, Office Manager Pleasant View Nursery, Inc. 1321 North Valrico Road Valrico, Florida 33594

Kenneth W. Smith, President

K. S. Enterprises, Inc.

1914 Beachway Road, Suite 2-J Jacksonville, Florida 32207-2320

Lawyers Surety Corporation Legal Department

1025 South Semoran

Suite 1085

Winter Park, Florida 32792

Richard Tritschler, Esquire

Department of Agriculture & Consumer Services The Capitol, Pl-10

Tallahassee, Florida 32399-0810

Honorable Bob Crawford Department of Agriculture and

Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing & Bond Department of Agriculture

508 Mayo Building

Tallahassee, Florida 32399-0800

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: 92-003032

Orders for Case No: 92-003032