STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRADEMARK PALMS, INC., d/b/a ) PALMCO, )

)

Petitioner, )

)

vs. ) Case No. 97-4725A

) TOULLA XIOUTAS, INC., d/b/a ) GULF BREEZE LANDSCAPING, and ) FRONTIER INSURANCE COMPANY ) OF NEW YORK, )

)

Respondents. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee, Florida, on January 26, 1998. Petitioner and the court reporter participated by videoconference in Fort Myers, Florida.

APPEARANCES

For Petitioner: Mark Dean, President

Trademark Palms, Inc. Post Office Box 2198 Pineland, Florida 33945

For Respondent: no appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent, Toulla Xioutas, Inc., owes Petitioner money for the purchase of landscape plants and, if so, how much.

PRELIMINARY STATEMENT

By Amended Complaint dated August 28, 1997, Petitioner requested that the Department of Agriculture and Consumer Services enter a final order determining that Respondent owes Petitioner $3642.50 for landscape plants sold to Respondent.

By Answer dated September 27, 1997, Respondent admitted the debt and stated that it was "trying to do a workout and would like everyone to be patient while we contact all vendors. If this isn’t satisfactory, then we would like to request a hearing."

The Department of Agriculture and Consumer Services sent the case to the Division of Administrative Hearings by letter dated October 9, 1997. The Administrative Law Judge set the case for hearing on December 19, 1997, but Petitioner asked for a continuance because it was unable to attend the hearing on that date. The Administrative Law Judge reset the hearing for January 26, 1998.

At the hearing, Petitioner called one witness and offered into evidence one exhibit, which was admitted. Respondent did not appear.

FINDINGS OF FACT

1. As is relevant in this case, Petitioner sold Respondent, Toulla Xioutas, Inc., d/b/a Gulf Breeze Landscaping (Respondent), numerous palm trees on three dates. The first sale took place on February 17, 1997, and consisted of 20 palm trees for a total of $1270. Respondent paid all but $34 of this sum.

2. The second sale took place on March 3, 1997, and consisted of 25 palm trees for a total of $1887.50. The third sale took place on March 24, 1997, and consisted of 15 palm trees for a total of $1721. Respondent never paid anything for these two purchases, which total $3608.50.

3. The palm trees conformed to the items ordered by Respondent in type, quality, and quantity. Petitioner repeatedly tried to obtain payment for these trees, but Respondent would not even respond to his calls.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1) and 604.21(6), Florida Statutes.

5. Petitioner has proved that Respondent owes it

$3642.50 for palm trees that Petitioner sold to Respondent.

RECOMMENDATION

It is

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent owes Petitioner $3642.50.

DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998.

COPIES FURNISHED:

Mark Dean, President Trademark Palms, Inc. Post Office Box 2198 Pineland, Florida 33945

David Joy

Toulla Xioutas, Inc.,

d/b/a Gulf Breeze Landscaping 901 MacEwen Drive

Osprey, Florida 34229

Lisa DeSantis

Surety Claims Analyst

Frontier Insurance Company of New York

195 Lake Louise Marie Road

Rock Hill, New York 12775-8000

Richard Tritschler, General Counsel Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0800

Brenda D. Hyatt, Chief Bureau of License and Bond Department of Agriculture

and Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

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: 97-004725

Orders for Case No: 97-004725