STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMERSON NURSERY, INC., )

)

)

Petitioner, )

)

vs. ) CASE NO. 93-1579A

)

GREEN ACRES SODDING & ) LANDSCAPING, INC. and STATE ) FARM FIRE AND CASUALTY COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, James E. Bradwell, on July 29, 1993, in Largo, Florida.

APPEARANCES

For Petitioner: Roy and Barbara Amerson

Post Office Box 202

Terra Ceia, Florida 34250

For Respondent: Shelly K. Thomas, President

(Green Acres Green Acres Sodding & Landscaping, Inc. Sodding) 9330 Ulmerton Road

Largo, Florida 34641

For Respondent: No appearance (State Farm)

STATEMENT OF THE ISSUES

Whether or not Petitioner is owed $7,097.15 by Respondent Green Acres for various nursery products.

PRELIMINARY STATEMENT

By its Complaint filed herein dated January 8, 1993, Petitioner, an agricultural producer in Florida, seeks to be paid $7,097.15 for agricultural products sold to Respondent Green Acres.

Respondent, Green Acres Sodding & Landscaping, Inc. (Green Acres), disputes that it owes Petitioner any money based on the claim. On March 22, 1993, the matter was transferred to the Division of Administrative Hearings by the Department of Agriculture and Consumer Services requesting the assignment of a Hearing Officer to conduct a formal hearing, pursuant to Subsection 604.21(6),

Florida Statutes. On May 26, 1993, the matter was scheduled for hearing for July 29, 1993 and was heard as scheduled. A transcript of the proceeding was received on August 19, 1993.

At the hearing, Petitioner introduced Exhibits 1 and 2 which were received in evidence at the hearing. Petitioner presented the testimony of its President and Vice President, Roy Amerson and Barbara Amerson. Green Acres presented the testimony of its President, Shelly K. Thomas. The parties did not file Proposed Recommended Orders.

FINDINGS OF FACT

1. Petitioner is a wholesaler engaged in the business of producing agricultural products, primarily nursery plants, since approximately 1953.

   
   

2. Green Acres is a retail nursery engaged in the business of selling sod, nursery products, and provision of other related landscaping services. Green Acres is a newly-formed business which commenced operations during the summer of 1992.

   
   

3. On August 10, 1992, Green Acres purchased from Petitioner various quantities of flowers and nursery products which are reflected by Petitioner's invoice nos. 5074, 5076, 5077 and 5080 in the respective amounts of $625.25,

   $1,097.00, $2,927.50, and $383.20. On August 14, 1992, Green Acres purchased another order of nursery products from Petitioner which is reflected by Petitioner's invoice no. 5085 in the total amount of $1,063.75. On August 18, 1992, again Petitioner delivered products to Green Acres based on an order (Petitioner's invoice no. 5060) for the total sum of $599.20. Finally, on September 17, 1992, Green Acres ordered various nursery products from Petitioner (Petitioner's invoice no. 5097), which were delivered to Green Acres for the total sum of $401.25.

   
   

4. Petitioner has made numerous attempts to collect for the nursery products that it supplied to Green Acres without success. These efforts to collect included personal trips to the Green Acres nursery by Roy Amerson. When disputes arose as to the pricing of plants, Green Acres unilaterally adjusted the price to the amount that it desired to pay which amount Petitioner accepted without protest based upon the fact that Petitioner's owners were aware that Green Acres was a new nursery and Petitioner was desirous of building a good client over a long period of time. For this reason, Petitioner also extended credit to Green Acres on an open-account basis for a long time without attempting to collect. Petitioner extended credit to Green acres based upon Petitioner's knowledge and understanding of the difficulty that new retail nursery owners undergo in starting a new nursery business.

   
   

5. Green Acres suffered fire damage at one of its office buildings on the Friday prior to the Labor Day weekend during 1992. As a result of that fire, Green Acres contends that it paid Petitioner in cash for products and was not properly receipted for those payments. Green Acres maintains that its receipts were destroyed in the fire. Green Acres's contention in this regard was considered; however, it is more likely than not that Green Acres did not pay Petitioner for any nursery products which they have not been granted credit for. In this regard, Petitioner introduced invoices and credit notations for each purchase of products that Green Acres ordered. Those invoices appear to properly reflect the entire series of transactions of the purchase of products from Petitioner with the appropriate credits and adjustments noted.

6. Respondent, State Farm Fire and Casualty Company (State Farm), issued a surety bond to Green Acres for the period during which Petitioner provided nursery products to Green Acres in 1992.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

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

   
   

9. The authority of the Florida Department of Agriculture and Consumer Services is derived from Chapter 604, Florida Statutes.

   
   

10. Petitioner is an agricultural producer within the meaning of Subsection 604.15(5), Florida Statutes.

    
    

11. Green Acres is a dealer in agricultural products within the meaning of Subsection 604.15(1), Florida Statutes.

    
    

12. Petitioner presented competent and substantial evidence which establishes that it supplied agricultural products to Green Acres during the period of August 10, 1992 through September 17, 1992 in the total amount of

    $7,097.15 for which it has not been paid.

    
    

13. Petitioner timely filed its Complaint with the Department of Agriculture and Consumer Services, pursuant to Subsection 604.21(1)&(2), Florida Statutes.

    
    

14. State Farm issued a surety bond to Green Acres, pursuant to Subsection 604.20, Florida Statutes.

RECOMMENDATION

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

The Department of Agriculture and Consumer Services enter a Final Order ordering Green Acres to pay to Petitioner the sum of $7,097.15 within fifteen

(15) days after the issuance of its Final Order. Upon the failure of Green Acres to tender the referenced amount to Petitioner, it is FURTHER RECOMMENDED that the Department of Agriculture and Consumer Services direct that the surety company pay over to the Department out of the surety bond posted for such dealer, the amount necessary to cover the indebtedness noted herein of

$7,097.15.

DONE AND ENTERED this 2nd day of September, 1993, in Tallahassee, Florida.

JAMES E. BRADWELL

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 2nd day of September, 1993.

COPIES FURNISHED:

Roy and Barbara Amerson Post Office Box 202

Terra Ceia, Florida 34250

Shelly K. Thomas 9330 Ulmerton Road

Largo, Florida 34641

Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, Esq. General Counsel Department of Agriculture

and Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture

and Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

Ms. Becky L. Herald

State Farm Fire & Casualty Company

112 East Washington Street Bloomington, Illinois 61710-1001

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Amerson Nursery, Inc., Petitioner,

vs. DOAH CASE NO. 93-1579A

LB CASE NO. 93-0034

Green Acres Sodding and Landscaping, Inc., and

State Farm Fire and Casualty Company,

Respondent.

/

FINAL ORDER

THIS CAUSE, arising under Florida's "Agricultural License and Bond Law" (Sections 604.15 - 604.34, Florida Statutes), came before the Commissioner of Agriculture of the State of Florida for consideration and final agency action. On February 8, 1993, the Petitioner, Amerson Nursery, Inc., a producer of agricultural products as defined by Section 604.15(3), Florida Statutes, timely filed an administrative complaint pursuant to Section 604.21, Florida Statutes, to collect $7,097.15 for trees and nursery plants it sold to Respondent, a licensed dealer in agricultural products. Respondent's license for the time in question was supported by a bond required by Section 604.20, Florida Statutes, written by State Farm Fire and Casualty Company in the amount of $10,000. The Respondent's answer denied the claim as valid and requested a hearing in this case, so this matter was subsequently heard in accordance with provisions of Section 120.57(1), Florida Statutes, as rendered September 2, 1993, a copy of which is attached hereto as Exhibit, to which neither party filed written exceptions with this Department.

Upon the consideration of the foregoing and being otherwise fully advised in the premises, it is

ORDERED:

1. The Hearing Officer's findings of fact are adopted in toto as this agency's findings of fact.

   
   

2. The Hearing Officer's conclusions of law are adopted in toto as this agency's conclusions of law.

   
   

3. The Hearing Officer's Recommendation that the Respondent, Green Acres Sodding and Landscaping, Inc., be ordered to pay Petitioner $7,097.15 is approved and adopted but modified to reflect said payment to be paid within fifteen (15) days after this Order becomes final and in the event Respondent fails to pay Petitioner $7,097.15 within fifteen (15) days of the Final Order, State Farm Fire and Casualty Company, as Surety for Respondent is hereby ordered to provide payment to BOB CRAWFORD, COMMISSIONER OF AGRICULTURE, under the conditions and provisions of the bond. This Order is final and effective on the date filed with the Clerk of the Department.

Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the Agency Clerk, 5th Floor, Mayo Building, Tallahassee, Florida 32399-0800, and a copy of the same with the appropriate District Court of Appeal within thirty

(30) days of rendition of this Order.

DONE AND ORDERED this 20th day of October, 1993.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

ANN H. WAINWRIGHT

Assistant Commissioner of Agriculture Filed with Agency Clerk, this 20th day of October, 1993.

Agency Clerk

Copies furnished:

Amerson Nursery, Inc.

P.O. Box 202

Terra Ceia, FL 34250

Green Acres Sodding and Landscaping, Inc. 9330 Ulmerton Road

Largo, Florida 34641

Ms. Becky L. Herald

State Farm Fire and Casualty Company

112 E. Washington Street Bloomington, IL 61710-1001

Mr. James E. Bradwell, Hearing Officer Division of Administrative Hearings

The DeSoto Building, 1230 Apalachee Parkway Tallahassee, FL 32399-1550

Mr. Mark Moritz, Field Representative

Docket for Case No: 93-001579

Orders for Case No: 93-001579