STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLETTA MYERS d/b/a MYERS' NURSERY, )

)

Petitioner, )

)

vs. ) CASE NO. 97-0808A

) FLORIDA LANDSCAPE ASSOCIATES OF ) PALM HARBOR, INC. and OLD )

REPUBLIC SURETY COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on May 9, 1997, in Tampa, Florida.

APPEARANCES

For Petitioner: James Myers

7116 Bay Head Drive Tampa, Florida 33634

For Respondent: Mary Carotenuto, Esquire

Suite 206

3000 Gulf to Bay Boulevard Clearwater, Florida 34619 (Florida Landscape Associates)

For Respondent: No appearance

(Old Republic Surety Company) STATEMENT OF THE ISSUES

Carletta Myers d/b/a Myers’ Nursery filed a complaint with the Florida Department of Agriculture and Consumer Services on October 23, 1996, alleging that Florida Landscape Associates of

Palm Harbor, Inc. failed to pay over $5800 for plants purchased between April and August 1996. The issue in this proceeding is whether those monies are owed.

PRELIMINARY STATEMENT

Florida Landscape Associates answered the complaint with a request for formal hearing and the case was referred to the Division of Administrative Hearings on February 14, 1997.

The hearing was scheduled for April 22, 1997, but was continued at the request of the respondent, and over the objection of Petitioner. See order entered April 23, 1997.

At the hearing James Myers, husband of Carletta Myers, appeared and testified on behalf of Myers’ Nursery. He offered four exhibits in evidence, which were admitted without objection.

Anna Borgan, office manager, testified on behalf of Florida Landscape Associates, and Respondent presented no exhibits.

The transcript of the proceeding was not filed, and neither party submitted proposed orders.

FINDINGS OF FACT

1. Myers’ Nursery (Myers’) is located in Tampa, Florida. It produces agricultural products in the state of Florida. Florida Landscape Associates (Florida Landscape) is a dealer in agricultural products, also located in Tampa, Florida. It purchases plants for its various landscaping projects.

2. For many months prior to April 1996, Myers’ and Florida Landscape had an arrangement in which Florida Landscape, mostly

   though Anna Borgan, its manager, ordered nursery stock by telephone for pick up later by Florida Landscape’s employees. Upon pick up, the employee generally signed an invoice “received by”. Later, Florida Landscape sent a payment for the products.

3. This arrangement was the same for most of the firms with which Myers’ conducted its business. During 1995, Florida Landscape paid approximately $8,000 for its purchases from Myers’.

4. Florida Landscape continued to order and pick up plants from Myers’ in 1996. However, commencing some time in March 1996, the payments stopped. Between April 1996 and the end of August 1996, Florida Landscape’s unpaid purchases totaled over

   $6,000. Despite calls and written demands, the invoices remain unpaid.

5. Myers’ filed its complaint with the Florida Department of Agriculture and Consumer Services on October 23, 1996. By that time some of the unpaid invoices were beyond the six-month’s statutory period for recovery under the agricultural bond program administered by the Florida Department of Agricultural and Consumer Services.

6. At the hearing, Myers’ submitted invoices dated from April 24, 1996 through August 23, 1996, reflecting approximately

   $6,000 of unpaid purchases by Florida Landscape.

   
   

7. Without explaining why all of these invoices remain unpaid, Florida Landscape conceded that it owes the money for all

   but two categories: the invoices that are not signed “received by”, and the invoices that were signed “received by” James (Jim) Derewenko.

8. Throughout the relevant period Jim Derewenko was an employee of Florida Landscape who routinely picked up and signed for nursery stock from Myers’. Sometime around the end of August 1996, Derewenko’s ex-wife told Florida Landscape that he had his own business on the side, in competition with his employer. Anna Borgan and others at Florida Landscape became concerned about Derewenko having diverted to his own customers plants ostensibly ordered by Florida Landscape. According to Anna Borgan, they “just didn’t know” where the plants ended up.

9. On September 10, 1996, Florida Landscape, by John Van Vulpen, its president, sent a letter notifying all of its vendors including Myers’, that, as of August 26, 1996, Jim Derewenko was no longer employed by Florida Landscape and was not authorized to make purchases on behalf of Florida Landscape.

10. The invoices for which Myers’ is claiming payment all precede the letter from Florida Landscape and pre-date Derewenko’s termination on August 26. There is no evidence that Myers’ had any knowledge of Derewenko’s diversion of plants.

11. Most of the invoices for which Myers’ claims payment have been signed by employees of Florida Landscape, including Jim Derewenko. For the invoices with no signature “received by”, it is impossible to determine who picked up the plants. Excluding

    the unsigned invoices, the total owed by Florida Landscape to Myers’ is $5854.55. This sum includes invoices dated August 21, 1996, and August 23, 1996, included in Petitioner’s exhibit no. 1.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction in this case pursuant to section 120.57(1), Florida Statutes and section 604.21(6), Florida Statutes.

13. Section 604.21(6), Florida Statutes provides a complaint and hearing procedure for persons damaged by breach of agreement by a licensed dealer in agricultural products. The Department of Agricultural and Consumer Services (agency) investigates the complaints and, if requested, refers apparent meritorious complaints for formal hearing pursuant to Chapter 120, Florida Statutes. If the complaint is found valid in whole or part, the dealer, or its surety must pay the amount called for in the agency’s final order. The complaint must be filed within six months from the date of sale or from receipt of the product. See Section 604.21(1), Florida Statutes. This latter deadline precludes recovery by Myers’ for some of its unpaid invoices.

14. Florida Landscape is a “dealer in agricultural products” as described in section 604.15(1), Florida Statutes. Myers’ is a “producer” of agricultural products as described in section 604.15(5), Florida Statutes.

15. Myers’ met its burden of proving by a preponderance of evidence that Florida Landscape owes $5,854.55 within the scope of section 604.21, Florida Statutes. See, section 120.57(1)(h), Florida Statutes (1996). That sum is uncontroverted by Florida Landscape except for the portion covered by invoices signed by Jim Derewenko. That sum does not include invoices which have no signature. Florida Landscape failed to prove that its employee did not have the authority to bind the company prior to August 26, 1996, when he was terminated.

RECOMMENDED

Based on the foregoing it is, hereby RECOMMENDED:

that the Department of Agriculture and Consumer Services enter its final order requiring Respondent, Florida Landscape Associates, to pay to Petitioner Myers’ Nursery the sum of

$5,854.55. The order should further provide that if payment is not made within fifteen days after the order becomes final, the department shall recover payment from the bond or certificate of deposit pursuant to section 604.21(8), Florida Statutes.

DONE and ENTERED this 6th day of June 1997 in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of June 1997.

COPIES FURNISHED:

Carletta Myers

7116 Bay Head Drive Tampa, Florida 33634

John Van Vulpen

Florida Landscape Associates of Palm Harbor, Inc. 14920 Race Track Road

Tampa, Florida 33626

Mary Carotenuto, Esquire Suite 206

3000 Gulf to Bay Boulevard Clearwater, Florida 34619

Lisa Frasier, Claims Representative Old Republic Surety Company

Post Office Box 1635 Milwaukee, Wisconsin 53201

Brenda D. Hyatt, Chief Bureau of License/Bond

Department of Agriculture and Consumer Services Mayo Building, Room 508

Tallahassee, Florida 32399-0800

Richard Tritschler, General Counsel

Department of Agriculture and 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 within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-000808

Orders for Case No: 97-000808