STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JON'S NURSERY, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 95-5943A

) PLANT STATION LANDSCAPING, INC. and ) FIDELITY AND DEPOSIT COMPANY )

OF MARYLAND, )

)

Respondents. )

)

RECOMMENDED ORDER

Notice in the above-styled cause was provided to all of the parties by order requiring that they respond and give the Hearing Officer dates when they would not be available and the location where they would like to have the hearing. Jon's Nursery, the Petitioner, and J & D Tropical Landscape Design responded. Fidelity and Deposit Company of Maryland, hereinafter designated the Surety, did not respond and did not appear.

A telephonic conference call was held between Pen Smith of Jon's Nursery, Jane Wilkinson of J & D Tropical Landscape Design, and the Hearing Officer to determine whether the parties desired a telephonic final hearing. Having been advised of the procedures, both parties agreed to a telephonic final hearing.

A hearing in the above-styled case was held by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on March 6, 1996, by telephonic conference, in accordance with the agreement of the parties.

APPEARANCES

For Petitioner: Pen Smith, Sales Manager

24546 Nursery Way

Eustis, Florida 32726

For Respondent: Jane Wilkinson, President

J & D Tropical Landscape 5151 Southwest 106th Avenue Cooper City, Florida 33328

For Surety: Did not appear and was not represented

after receiving notice of the pending action.

STATEMENT OF THE ISSUE

The ultimate issue is whether the Respondent owes the Petitioner money for the purchase of landscaping plants from the Petitioner. The controversy specifically involves whether the Respondent owes the Petitioner interest on its open account pursuant to the terms of purchase and how much interest, if any, the Respondent owes.

PRELIMINARY STATEMENT

On March 7, 1995, Rita Rackley, Secretary/Treasurer of Jon's Nursery, the Petitioner, filed a complaint with the Department of Agriculture alleging that the Respondent, J & D Tropical Landscape Design, owed the Petitioner a total of

$10,825.16 for live plants sold to the Respondent on terms described as "Net 30 days." By letter dated April 7, 1995, the Petitioner advised the Department of the Petitioner's desire to have its complaint held in abeyance. By letter dated October 19, 1995, the Petitioner advised the Department that it desired to amend its original complaint to change the amount owed to $8,879.88, and to lift the abeyance and proceed with the complaint.

On November 1, 1995, The Department notified the parties of the amendment of the complaint, the new amount claimed, and of the Respondent's right to respond to the complaint and to request a hearing on the matter, pursuant to Chapter 120, Florida Statutes. On or about November 9, 1995, Jane Wilkinson filed an Answer on behalf of the Respondent, which controverted the amount of the debt, and requested a formal hearing. By letter dated December 6, 1995, the Department forwarded the case to the Division of Administrative Hearings to conduct a formal hearing and enter a Recommended Order on the issues presented.

Having determined that the parties were appearing pro se and that they lived in two different geographic areas of the State, the Hearing Officer held a preliminary telephonic prehearing conference and explained that they could have a telephonic final hearing if they exchanged notarized copies of any documentary exhibits involved in the case and made arrangements for a notary public to be present with them at the formal hearing to identify their witnesses and swear them to tell the truth. Understanding how the hearing would be conducted and what was involved, the parties agreed to a telephonic final hearing, which was scheduled for March 6, 1996.

On March 6, 1996, a telephonic final hearing was conducted at which the representatives of the parties were identified by notary publics and sworn to tell the truth, it having been determined that the representatives would be the only witnesses in the case. The Petitioner identified notarized exhibits which had been previously provided to the Hearing Officer and the Respondent. These exhibits were received into evidence as Petitioner's Composite Exhibit, consisting of pages numbered 1 through 22. The Petitioner's representative also identified and testified from a chronology of events which he used to supplement his testimony. The Respondent's representative testified, but did not introduce any exhibits.

At the conclusion of the hearing, both parties were advised of their right to file proposed findings of fact and arguments, which the Hearing Officer permitted them to do in letter format. The Petitioner filed a letter, which was read and considered; however, it was considered an argument on the issues and not as proposed findings.

FINDINGS OF FACT

1. On October 11, 1994, the Petitioner, Jon's Nursery, sold to the Respondent, J & D Tropical Landscape Design, live plants with a value of

   $6,625.00. See Page 3, Petitioner's Composite Exhibit.

   
   

2. The sale was upon credit terms which provided that the terms were 30 days net, and provided for a service charge assessed at a rate of one and one- half percent per month on any past due (over 30 days) balance of the account to be paid by buyer. The credit application was signed "Jane Wilkinson, President" on December 11, 1992. See Page 2, Petitioner's Composite Exhibit.

   
   

3. On November 1, 1994, the Petitioner sold to the Respondent live plants with a value of $5,996.82. See Page 4, Petitioner's Composite Exhibit.

   
   

4. On November 4, 1994, the Petitioner sold to the Respondent live plants with a value of $2,645.92. See Page 4, Petitioner's Composite Exhibit.

   
   

5. On November 30, 1994, the Petitioner charged the Respondent a finance charge of $99.38 on $6,625.00, that portion of the Respondent's balance which had been due and owing over 30 days. The Respondent's total balance was then

   $15,267.74. See Page 4, Petitioner's Composite Exhibit.

   
   

6. On December 30, 1994, the Petitioner charged the Respondent a finance charge of $229.02 on $15,267.74, that portion of the Respondent's balance which had been due and owing over 30 days. The Respondent's total balance was then

   $15,596.14. See Page 5, Petitioner's Composite Exhibit.

   
   

7. On January 30, 1995, the Petitioner charged the Respondent a finance charge of $229.02 on $15,267.74, that portion of the Respondent's balance which had been due and owing over 30 days. The Respondent's total balance was then

   $15,825.16. See Page 6, Petitioner's Composite Exhibit.

   
   

8. On February 23, 1995, the Respondent paid the Petitioner $5,000.00. The Petitioner applied $557.42 to the payment of the accrued interest, and

   $4,442.58 to the principal balance, which reduced that balance to $10,825.16. See Page 7, Petitioner's Composite Exhibit.

   
   

9. On March 2, 1995, the Petitioner charged the Respondent a finance charge of $162.38 on $10,825.16, that portion of the Respondent's balance which had been due and owing over 30 days. The Respondent's balance was then

   $10,987.54. See Page 8, Petitioner's Composite Exhibit.

   
   

10. On March 7, 1995, Rita Rackley, Secretary Treasurer of Jon's Nursery, the Petitioner, filed a complaint with the Department of Agriculture alleging that the Respondent, J & D Tropical Landscape Design, owed the Petitioner a total of $10,825.16 for live plants sold to the Respondent on terms described as "Net 30 days." On April 7, 1995, the Petitioner asked that the complaint be held in abeyance.

    
    

11. On March 30, 1995, the Petitioner charged the Respondent a finance charge of $162.38 on $10,825.16, that portion of the Respondent's balance which had been due and owing over 30 days. The Respondent's balance was then

    $11,149.92. See Page 8, Petitioner's Composite Exhibit.

12. On April 15, 1995, the Respondent paid the Petitioner $1,000.00. The Petitioner applied $324.76 to the payment of the accrued interest, and $675.24 to the principal balance, which reduced that balance to $10,149.92. See Page 9, Petitioner's Composite Exhibit.

    
    

13. On April 30, 1995, the Petitioner charged the Respondent a finance charge of $152.25 on $10,149.92, that portion of the Respondent's balance which had been due and owing over 30 days. The Respondent's balance was then

    $10,302.17. See Page 9, Petitioner's Composite Exhibit.

    
    

14. On May 30, 1995, the Petitioner charged the Respondent a finance charge of $152.25 on $10,149.92, that portion of the Respondent's balance which had been due and owing over 30 days. The Respondent's balance was then

    $10,454.42. See Page 10, Petitioner's Composite Exhibit.

    
    

15. On June 12, 1995, the Respondent paid the Petitioner $1,000.00. The Petitioner applied $304.50 to the payment of the accrued interest, and $695.50 to the principal balance, which reduced that balance to $9,454.42. See Page 11, Petitioner's Composite Exhibit.

    
    

16. On June 30, 1995, the Petitioner charged the Respondent a finance charge of $141.82 on $9,454.42, that portion of the Respondent's balance which had been due and owing over 30 days. The Respondent's balance was then

    $9,596.24. See Page 11, Petitioner's Composite Exhibit.

    
    

17. On July 30, 1995, the Petitioner charged the Respondent a finance charge of $141.82 on $9,454.42, that portion of the Respondent's balance which had been due and owing over 30 days. The Respondent's balance was then

    $9,738.06. See Page 12, Petitioner's Composite Exhibit.

    
    

18. On August 30, 1995, the Petitioner charged the Respondent a finance charge of $141.82 on $9,454.42, that portion of the Respondent's balance which had been due and owing over 30 days. The Respondent's balance was then

    $9,879.88. See Page 13, Petitioner's Composite Exhibit.

    
    

19. On September 14, 1995, the Respondent paid the Petitioner $1,000.00. The Petitioner applied $425.46 to the payment of the accrued interest, and

    $574.54 to the principal balance, which reduced that balance to $8,879.88. See Page 14, Petitioner's Composite Exhibit.

    
    

20. On September 30, 1995, the Petitioner charged the Respondent a finance charge of $133.20 on $8,879.88, that portion of the Respondent's balance which had been due and owing over 30 days. The Respondent's balance was then

    $9,013.08. See Page 14, Petitioner's Composite Exhibit.

    
    

21. By letter dated October 19, 1995, the Petitioner advised the Department that it desired to amend its original complaint to change the amount owed to $8,879.88, and to lift the abeyance and proceed with the complaint.

    
    

22. On October 30, 1995, the Petitioner charged the Respondent a finance charge of $133.20 on $8,879.88, that portion of the Respondent's balance which had been due and owing over 30 days. The Respondent's balance was then

    $9,146.28. See Page 15, Petitioner's Composite Exhibit.

    
    

23. After September 14, 1995, the monthly finance charges on the unpaid balance would remain $133.20.

    CONCLUSIONS OF LAW

    
    

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

    
    

25. Section 604.20(1), Florida Statutes, provides that dealers in agricultural products must make and deliver to the Department of Agriculture a surety bond or certificate of deposit which shall be conditioned to secure the faithful accounting for and payment to producers or their agents or representatives of the proceeds of all agricultural products handled or purchased by such dealer.

    
    

26. Section 604.21, Florida Statutes, provides a procedure by which any person who is damaged by any breach of the conditions of a bond or certificate of deposit assignment or agreement given by a licensed dealer in agricultural products may enter a complaint against the dealer and against the surety, if any, to the Department within six months of the date of the direct sale of the agricultural products to the buyer.

    
    

27. The facts show, and it is not controverted, that the Petitioner in this cause is an agricultural producer, and the Respondent is an agricultural dealer. The Petitioner has the burden to show that the Respondent owes the money claimed by a preponderance of the evidence.

    
    

28. The facts reveal that there was a sale, and, as stated above, the Respondent does not controvert the sale price. The terms of the credit contract are clear: the Petitioner could charge a service charge of one and one-half percent per month on balances left owing more than 30 days. The Respondent does not controvert these terms.

    
    

29. In this case, the Respondent controverts the claim based upon the amount of interest charged. Specifically, the Respondent objects to any interest charged after the filing of the claim with the Department. The Respondent bears the burden of proof of this defense to the Petitioner's claim.

    
    

30. Interest on the account is governed by the contract between the parties, which provided for one and one-half percent interest per month on that portion of the balance due for more than 30 days. It makes no difference whether one credits the payments to interest first, with the balance to principal, or credits payment all to principal, with interest computed on the balance because interest is not compounded.

    
    

31. The unpaid balance due upon, which interest might be charged under the contract as of October 1, 1995, was $8,879.88; and the balance of both interest and principal owed on October 19, 1995, when the Petitioner amended its complaint, was $9,013.08, which included $133.20, the interest due September 30, 1995 on the $8,879.88.

    
    

32. The Respondent did not cite any provision of statute or any rule which stops interest from accruing upon the filing of a complaint. To the contrary, a review of agriculture cases in the Division of Administrative Hearings ACCESS System revealed cases arising under Chapter 604, Florida Statutes, which have provided for the payment of interest on claims. See, particularly, DOAH Case Number 94-6873A. Therefore, the Petitioner was entitled under their contract to all of the interest which it charged and collected from the Respondent through September, 1995.

33. However, the Petitioner's complaint, as amended, only seeks $8,879.88, and the amended complaint does not seek interest on that amount. The Petitioner's recovery is limited to the amount it sought in the amended complaint, $8,879.88, as a matter of pleading and notice.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That the Department enter its Final Order directing the Respondent to pay to the Petitioner, within 30 days, $8,879.88, and,

That, in the event the Petitioner does not pay, the Department order the Fidelity and Deposit Company of Maryland to pay to the Petitioner $8,879.88, or the amount of its bond, whichever is the greater.

DONE AND ENTERED this 16th day of April, 1996, in Tallahassee, Florida.

STEPHEN F. DEAN, 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 16th day of April, 1996.

COPIES FURNISHED:

Pen Smith, Sales Manager 24546 Nursery Way

Eustis, FL 32726

Jane Wilkinson, President

J & D Tropical Landscape Design 5151 S.W. 106th Avenue

Cooper City, FL 33328

Fidelity & Deposit Company of Maryland

Legal Department Post Office Box 1227 Baltimore, MD 21203

The Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and

Consumer Services The Capitol, PL-10

Tallahassee, FL 32399-0810

Richard Tritschler, General Counsel Department of Agriculture and

Consumer Services The Capitol, PL-10

Tallahassee, FL 32399-0810

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.

Docket for Case No: 95-005943

Orders for Case No: 95-005943