STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOLMBERG FARMS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-6193A

)

LANDTECH SERVICES, INC., )

and WESTERN SURETY COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case by video teleconference on January 27, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Jeanetta Patterson, Accounting Clerk Holmberg Farms, Inc.

13430 Hobson-Simmons Road

Lithia, Florida 33547 For Respondents: No appearance 1/

STATEMENT OF THE ISSUES

Whether Respondent, Landtech Services, Inc., is indebted to Petitioner in the amount of $1,347.07 for the purchase of agricultural products.

PRELIMINARY STATEMENT

Petitioner, Holmberg Farms, Inc., filed a Complaint on October 1, 1993, against Respondent, Landtech Services, Inc., (Landtech), for $1,347.07 for agricultural products sold to Landtech.

On October 22, 1993, the Department served a Notice of Filing the Complaint on Respondents, Landtech and Western Surety Company.

On November 10, 1993, Landtech filed a written answer denying responsibility for the debt and requested a hearing.

On November 3, 1994, the Department referred this case to the Division of Administrative Hearings for a formal hearing.

On December 23, 1994, this matter was set for hearing on January 27, 1995, and this hearing ensued.

The parties did not file proposed recommended orders and a transcript was not provided.

FINDINGS OF FACT

1. Petitioner, Holmberg Farms, Inc., is a producer of agricultural products located in Lithia, Florida.

   
   

2. Respondent, Landtech Services, Inc. (Landtech), is an agricultural dealer located in Largo, Florida.

   
   

3. Respondent, Western Surety Company, is a surety and issued to Respondent, Landtech, a surety bond for the purchase of agricultural products in Florida.

   
   

4. On or about April 9, 1993, Respondent, Landtech, purchased from Petitioner, on invoice number T7284, eleven hundred and ten (1,110) six inch honeysuckle ornamental plants for the price of $1,950.55.

   
   

5. The terms of the sale between Petitioner and Respondent, Landtech, were

   C.O.D. at the time of delivery. However, Petitioner's truck driver was unaware of the terms of the sale and therefore, did not collect full payment at the time he delivered the plants to Landtech.

   
   

6. Respondent, Landtech, paid Petitioner's driver the sum of $400.00 toward the purchase of the honeysuckle plants leaving a balance due of

   $1,550.55.

   
   

7. On August 20, 1993, Respondent, Landtech, paid to Petitioner the payment of $250.00 of which $203.48 was applied to the balance and $46.50 was applied to interest owed.

   
   

8. Petitioner, now claims the balance of $1,347.07.

   
   

9. Respondent, Landtech, is indebted to Petitioner in the amount of

   $1,347.07 as claimed in its complaint.

   
   

10. As noted, Respondents, Landtech and Western Surety, did not appear at the hearing to contest or otherwise refute the allegations in the statement of claim.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

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

    
    

13. The authority of the Department of Agriculture is derived from Chapter 604, Florida Statutes.

    
    

14. Petitioner, Holmberg Farms, Inc., is an agricultural producer within the meaning of Section 604.05, Florida Statutes.

15. Respondent, Landtech Services, Inc., is an agricultural dealer within the meaning of Section 604.01, Florida Statutes.

    
    

16. Respondent, Western Surety Company, issued to Respondent Landtech a surety bond for the purchase of agricultural products pursuant to Section 604.20, Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Agriculture issue its final order

requiring that Respondent, Landtech Services, Inc., pay to Petitioner, Holmberg Farms, Inc., the amount of $1347,07, within fifteen (15) days of its Final Order.

It is further RECOMMENDED that if Respondent, Landtech, fail to timely remit payment to Petitioner, the Department shall call upon the surety to pay over to the Department, from funds out of the surety certificate, the amount called for in this order. 2/

RECOMMENDED this 3rd day of March, 1995, 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 3rd day of March, 1995.

ENDNOTES

1/ Although duly noticed, the Respondents did not appear to contest or otherwise refute the allegations in the complaint.

2/ There are two other cases filed against Respondents which are not consolidated - DOAH Case Nos. 94-6192A and 94-6194A. In the event that the surety certificate is insufficient to pay in full the amount due each complainant, the Department will distribute the proceeds pro rata among such complainants.

COPIES FURNISHED:

Jeanetta Patterson, Accounting Clerk Holmberg Farms, Inc.

13430 Hobson-Simmons Road

Lithia, Florida 33547

Chris Phillips

Landtech Services, Inc. 12253 62nd Street

Largo, Florida 34643

The US Trustee 4921 Memorial Hwy.

Tampa, Florida 33634

Western Surety Company

101 South Phillips Avenue Sioux Falls, SD 57192

Brenda Hyatt

Bureau of License & Bond Dept. of Agriculture

& Consumer Services Mayo Building

Tallahassee, Florida 32399-0800

Richard Tritschler, Esquire Department of Agriculture

& Consumer Services The Capitol PL-10

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: 94-006193

Orders for Case No: 94-006193