STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HIBERNIA ENTERPRISES, LLC, d/b/a HIBERNIA NURSERY,

Petitioner,

vs.

TURNER TREE FARM, INC., d/b/a TURNER TREE AND LANDSCAPE, AND GREAT AMERICAN INSURANCE COMPANY, AS SURETY,

Respondents.

/

Case No. 16-0278

RECOMMENDED ORDER

An administrative hearing was conducted in this case on June 23, 2016, in Dade City, Florida, before James H. Peterson III, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David Counihan, pro se1/

1176 C 478A

Webster, Florida 33597

Shiobhan Olivero, Esquire 3900 North Boulevard

Tampa, Florida 33603

For Respondent Turner Tree Farm and Landscape:

No appearance.2/

For Respondent Great American Insurance Company: No appearance.

STATEMENT OF THE ISSUE

Whether Len-Tran, Inc., d/b/a Turner Tree and Landscape (Respondent or Len-Tran, Inc.), or its surety company, Great American Insurance Company, is liable to Hibernia Enterprises, LLC, d/b/a Hibernia Nursery (Petitioner or Hibernia), for

$16,139.33 in agricultural products delivered to Respondent, plus the $50.00 filing fee for this action.

PRELIMINARY STATEMENT

On November 13, 2015, Petitioner filed a claim (Petitioner's Claim), together with a $50.00 filing fee, with the Florida Department of Agriculture and Consumer Services (the Department) for alleged unpaid deliveries of agricultural products to "Turner Tree and Landscape." Petitioner’s Claim was submitted pursuant to section 604.21, Florida Statutes,3/ on an Agricultural Products Dealer Claim Form with attached invoices dated from July 20, 2015, through August 21, 2015, totaling

$16,139.33.

On December 9, 2015, the Department provided a "Notice of Claim Filing" (Notice of Claim) and a copy of Petitioner's Claim with attached invoices to "Turner Tree Farm, Inc. d/b/a Turner Tree and Landscape, Attn: Mr. Peter Mackey, Esq., Registered Agent, 1402 3rd Drive West, Bradenton, FL 34205" and to "Great American Insurance Company, c/o Bond Claim Department,

301 E. 4th Street, Cincinnati, Ohio 45202." The Notice of Claim explained that "[i]t is the Department's responsibility to process this claim in accordance with the Florida Agricultural License and Bond Law, Sections 604.15 - 604.34, Florida Statutes." The Notice of Claim included an attached "Answer of Respondent form (FDACS-06314)" for use in preparing a response to Petitioner's Claim.

On January 4, 2016, Len-Tran, Inc. filed an answer to Petitioner's Claim on the Department's Answer of Respondent form. The handwritten portion of the form identified Respondent as "Len tran inc d/b/a Turner tree Farm," and stated:

They filed there [sic] claim on the wrong bond. They filed on Turner tree farm. If you look at the claim it should be filed under Len tran inc dba Turner tree & Landscape.

The pre-printed paragraph 13 of the Answer of Respondent form states, in pertinent part, "BY COMPLETING THIS FORM I REQUEST A HEARING." The form was signed by Darrell Turner as "CEO" of "Len tran inc d/b/a Turner Tree Farm." Great American Insurance Company did not respond to Petitioner's Claim and did not appear or file anything in these proceedings.

On January 19, 2016, the Department referred the matter to the Division of Administrative Hearings (DOAH) to conduct the requested hearing. Thereafter, this case was initially scheduled for a final hearing to be held on March 29, 2016.

On February 19, 2016, Petitioner filed with DOAH a Corrected Agricultural Products Dealer Claim Form naming "Len- Tran, Inc. d/b/a Turner Tree and Landscape" as the legal name of Respondent (Petitioner’s Corrected Claim). Thereafter, on March 8, 2016, Respondent filed a Motion to Dismiss and a Motion to Continue Final Hearing asserting that Petitioner had initially filed against the wrong entity and bond. The Motion to Dismiss was denied, without prejudice, and the Motion to Continue was granted.

The final hearing was subsequently rescheduled and heard on June 23, 2016. At the final hearing, Petitioner's president and owner, David Counihan, testified and offered five exhibits received into evidence as Petitioner's Exhibits P-1 through P-5. No one appeared at the hearing for Respondent or the Great American Insurance Company. However, when contacted on the day of the hearing, Respondent’s counsel’s office informed the undersigned that Respondent had filed bankruptcy.

Following Mr. Counihan’s pro se presentation on behalf of Petitioner, at the close of the final hearing, the undersigned requested that Petitioner file in this case, by July 15, 2016, additional information regarding the filing of Petitioner’s Claim with the Department, whether Petitioner’s Corrected Claim was filed with the Department of Agriculture, and any written notice of Respondent’s bankruptcy. The undersigned also recommended, on

the record, that any post-hearing submittals should address the following: 1) whether Petitioner’s Corrected Claim was filed with the Department, as well as with DOAH; 2) whether the undersigned has authority to allow an amendment to Petitioner’s Claim as set forth in Petitioner’s Corrected Claim; 3) whether Petitioner’s Corrected Claim was timely; and 4) whether Respondent’s bankruptcy has any effect on these proceedings.

The proceedings were recorded. At the hearing, with the understanding that Petitioner would be ordering a transcript of the proceedings, the parties were given 45 days from the filing of the transcript within which to submit proposed recommended orders. Subsequently, Petitioner obtained counsel, Shiobhan Olivero, Esquire, who filed a Notice of Appearance on July 7, 2016.

Also on July 7, 2016, Petitioner’s counsel filed Petitioner’s Memorandum to the ALJ Regarding Hearing Held on June 23, 2016 (Petitioner’s Memorandum). Petitioner’s Memorandum addressed the four issues the undersigned identified at the close of the final hearing and attached correspondence from the Department to the undersigned dated July 7, 2016, regarding Petitioner’s Corrected Claim, as well as e-mails between Petitioner’s counsel and the Department dated July 6, 2016, related to Petitioner’s Corrected Claim. Petitioner’s Memorandum also attached copies of Florida Department of State corporate

documents on Len-Tran, Inc., and Turner Tree Farm, Inc., as well as Fictitious Name Detail for Turner Tree and Landscape. In addition, Petitioner’s Memorandum attached a “Notice of

Chapter 11 Bankruptcy Case” (Bankruptcy Notice) indicating that Respondent filed for Chapter 11 bankruptcy on May 13, 2016, in the United States Bankruptcy Court for the Middle District of Florida.

On July 11, 2016, the letter dated July 7, 2016, from the Department to the undersigned, which was attached to Petitioner’s Memorandum, was filed separately with DOAH. On July 14, 2016, a letter from the Department, purporting to correct a clerical error in the July 7, 2016, letter was filed with DOAH.

On August 11, 2016, Respondent’s counsel, Mr. Mackey, Esquire, filed a Motion to Withdraw as Counsel of Record. On August 17, 2016, prior to a ruling on Mr. Mackey’s Motion to Withdraw as Counsel of Record, Mark Barnebey, Esquire, filed a Notice of Appearance on behalf of Respondent.4/ On August 17, 2016, a Notice of Telephonic Status Conference and Hearing on Motion to Withdraw as Counsel of Record was entered, scheduling a telephonic conference call for August 18, 2016. The telephonic conference call was held as scheduled, but Mr. Mackey did not attend. An Order Denying Motion to Withdraw as Counsel was entered on August 18, 2016, because Mr. Mackey had not appeared at the telephonic hearing or complied with applicable rules. In

addition, an Order on Status Conference was entered on August 18, 2016, requiring the parties, by a time certain, to advise whether a transcript of the final hearing would be ordered and requiring the parties to file their proposed recommended orders by

October 10, 2016, if they decided not to order a transcript.

Having not timely heard from the parties whether a transcript would be ordered, on September 19, 2016, an Order requiring proposed recommended orders to be filed by October 10, 2016, was entered. No transcript of the final hearing was ever filed.

Petitioner’s Proposed Recommended Order was filed on October 24, 2016. Neither Respondent nor Great American Insurance Company filed a proposed recommended order.

Petitioner’s Memorandum and Petitioner’s Proposed Recommended Order have been considered in preparing this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a Florida limited liability company, whose principal address is 1176 C-478A, Webster, Florida 33597. Petitioner is a producer of agricultural products as defined by section 604.15(5). Petitioner grows and supplies shrubs, trees, and ground covers.

2. At all pertinent times, Respondent, a Florida for- profit corporation, has been a dealer in agricultural products as defined in section 604.15(1), with a principal address of

   
   

   2504 64th Street Court East, Bradenton, Florida 34208. Respondent has been doing business as, and is the registered owner of, the fictitious name “Turner Tree and Landscape.” Respondent’s president is Darrell Turner and its registered agent is Peter Mackey, Esquire, with the Mackey Law Group in Bradenton, Florida.

3. Darrell Turner is also listed as the president of Turner Tree Farm, Inc., a Florida for-profit corporation, whose principal address is also 2504 64th Street Court East, Bradenton, Florida 34208. Turner Tree Farm, Inc.’s, registered agent is the Mackey Law Group in Bradenton, Florida.

4. During all relevant time periods, Great American Insurance Company, 301 East 4th Street, Cincinnati, Ohio 45202, has been the surety company providing agricultural surety bonds for both Len-Tran, Inc., and Turner Tree Farm, Inc., in favor of the Department as obligee. The agricultural surety bond provided by Great American Insurance Company for Len-Tran, Inc., is Bond No. 3118082. The agricultural surety bond provided by Great American Insurance Company for Turner Tree Farm, Inc., is Bond No. 3118081.

5. From July 20 through August 21, 2015, Petitioner delivered $16,139.33 worth of agricultural products to Len-Tran, Inc. These products were accepted, yet Len-Tran, Inc., has not paid for these products. All of the underlying purchase orders

   
   

   from Respondent to Petitioner for the subject agricultural products, which were delivered and invoiced to Respondent, were prepared on letterhead, entitled "Turner Tree and Landscape, 2504 64th Street Court East, Bradenton FL 34208."

6. Petitioner’s Claim, setting forth the basis of Petitioner's claim against Respondent and its surety, was filed with the Department on November 13, 2015, which is less than six months from the deliveries that form the basis of the claim.

7. Petitioner's Claim listed "Turner Tree and Landscape" on line six of the Agricultural Products Dealer Claim Form, labeled "Legal name of Respondent (Dealer)." The following examples are printed in a parenthetical appearing under line six of the form: "Individual's name, partners names, corporate name, co-op, etc." On line seven of the form, labeled "Trade name of Respondent (d/b/a, fictitious name, etc.)," Petitioner wrote "N/A."

8. Although Petitioner listed "Turner Tree and Landscape" on the wrong line of the form, Petitioner's listing of Turner Tree and Landscape as the “respondent” on the form did not constitute a filing against Turner Tree Farm, Inc. The Department, not Petitioner, decided to serve Petitioner’s Claim on Turner Tree Farm, Inc., instead of Len-Tran, Inc. That

   
   

   decision turned out to be incorrect because “Turner Tree and Landscape” is the fictitious name of Len-Tran, Inc., not Turner Tree Farm, Inc.

9. Nevertheless, the Department served Petitioner’s Claim on Turner Tree Farm, Inc., and Great American Insurance Company on December 9, 2016.

10. Petitioner's Corrected Claim was filed by facsimile with DOAH on February 19, 2016.

11. There is a cover letter to Petitioner's Corrected Claim addressed to the undersigned at DOAH. The cover letter was apparently left off of the facsimile of Petitioner's Corrected Claim that was filed with DOAH because it does not appear on the DOAH docket for this case. The cover letter was received into evidence at the final hearing as the first page of Petitioner's Exhibit P-5. The cover letter, also dated February 19, 2016, states:

    Case No. 16-0278

    
    

    Hibernia Enterprises, LLC vs. Turner Tree and Landscape and Great American Ins.

    
    

    Your Honor:

    
    

    When we filled out the paperwork to place a claim on Turner Tree and Landscape's ag bond on the first page #6 Legal name - we printed Turner Tree and Landscape not Len-Tran Inc. Can we please correct #6 and #7 so it states:

    
    

    1. Legal name of Respondent (Dealer): Len- Tran, Inc.

       
       

    2. Trade name of Respondent (d/b/a, fictitious name, etc): Turner Tree and Landscape

       
       

       I have enclosed a copy of the original first page filed, corrected first page how it should read and Turners Answer of Respondent.

       
       

       Sincerely, David Counihan President

       
       

       Certificate of Service:

       Copy emailed and faxed to: Len-Tran, Inc., d/b/a Turner Tree and Landscape

       
       

12. In addition to filing Petitioner's Corrected Claim in this case on February 19, 2016, after the final hearing, Petitioner also filed Petitioner's Corrected Claim with the Department on July 6, 2016. Thereafter, as reflected on correspondence from the Department to the undersigned filed in this case on July 11, 2016, as well as attached to Petitioner's Memorandum, the Department served copies of Petitioner's Corrected Claim on Len-Tran, Inc., and Great American Insurance Company by mail on July 7, 2016 (the date of the correspondence). The correspondence attached a copy of the Agricultural Products Dealer Bond No. 3118082, in the amount of

    $100,000, issued in favor of the Department, as obligee, by "Len-Tran, Inc. dba Turner Tree & Landscape," as principal, and by Great American Insurance Company, as surety. A "Change

    
    

    Rider," was also attached, showing an effective date of the

    
    

    Len-Tran, Inc.'s, bond from July 6, 2015, through July 5, 2016.

    
    

13. Since the filing of this case at DOAH, copies of all Orders entered in this case have been provided to Respondent and Great American Insurance Company, and all pleadings and filings in this case have been available for view on DOAH’s website.

14. Respondent, Len-Tran, Inc., d/b/a Turner Tree and Landscape filed Chapter 11 bankruptcy on May 13, 2016.

15. While the automatic stay imposed by federal bankruptcy laws protects Respondent from certain actions during and after its bankruptcy, Great American Insurance Company, as surety for Respondent, is not alleviated from responsibility of payment of the claim, even though Respondent filed bankruptcy.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to sections 120.569, 120.57(1), and 604.21(6), Florida Statutes.

17. Hibernia, as Petitioner, bears the burden of proving the allegations of its complaint by a preponderance of the evidence. See Dep’t of Banking & Fin., Div. of Sec. & Inv.

    Prot. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996)(“The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as

    
    

    to that issue.”); Fla. Dep’t of Transp. v. J.W.C. Co., 396 So.

    
    

    2d 778, 788 (Fla. 1st DCA 1981); Vero Beach Land Co., LLC v. IMG Citrus, Inc., Case No. 08-5435 (Fla. DOAH Mar. 4, 2009; Dep’t

    Agric. & Consumer Serv. July 20, 2009), aff’d, IMG Citrus, Inc. v. Westchester Fire Ins. Co., 46 So. 3d 1014 (Fla. 4th DCA

    2010); § 120.57(1)(j), Fla. Stat.; cf., Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla. 2000) (“A preponderance of the evidence is ‘the greater weight of the evidence,’ [citation omitted] or evidence that ‘more than not’ tends to prove a certain proposition.”).

18. Section 604.15 contains the following definitions, in pertinent part:

    1. "Agricultural products" means the natural products of the farm, nursery, grove, orchard, vineyard, garden, and apiary (raw or manufactured); . . . .

    2. "Dealer in agricultural products" means any person, partnership, corporation, or other business entity, whether intinerant or domiciled within this state, engaged within this state in the business of purchasing, receiving, or soliciting agricultural products from the producer or the producer's agent or representative for resale or processing for sale; acting as an agent for such producer in the sale of agricultural products for the account of the producer on a net return basis; or acting as a negotiating broker between the producer or the producer's agent or representative and the buyer.

    
    

    * * *

    
    

    (5) "Producer" means any producer of agricultural products produced in the state.

    
    

19. Section 604.17 requires dealers in agricultural products to be licensed by the Department. As a condition of licensure, dealers must deliver to the Department a surety bond or a certificate of deposit. The surety bond or certificate of deposit secures payment to producers for agricultural products sold to dealers. § 604.20(1), Fla. Stat.

20. Section 604.21 provides, in pertinent part:

    
    

    (1)(a) Any person, partnership, corporation, or other business entity claiming to be damaged by any breach of the conditions of a bond or certificate of deposit assignment or agreement given by a dealer in agricultural products as hereinbefore provided may enter complaint thereof against the dealer and against the surety company, if any, to the department, which complaint shall be a written statement of the facts constituting the complaint.

    Such complaint shall include all agricultural products defined in

    s. 604.15(1), as well as any additional charges necessary to effectuate the sale unless these additional charges are already included in the total delivered price. Such complaint shall be filed within 6 months from the date of sale in instances involving direct sales or from the date on which the agricultural product was received by the dealer in agricultural products, as agent, to be sold for the producer. No complaint shall be filed pursuant to this section unless the transactions involved total at least $500 and occurred in a single license year. Before a complaint can be processed, the complainant must provide the department with a $50 filing fee. In the event the complainant is successful in proving the

    
    

    claim, the dealer in agricultural products shall reimburse the complainant for the $50 filing fee as part of the settlement of the claim.

    
    

    (b) To be considered timely filed, a complaint together with any required affidavit must be received by the department within 6 months after the date of sale by electronic transmission, facsimile, regular mail, certified mail, or private delivery service. If the complaint is sent by a service other than electronic mail or facsimile, the mailing shall be postmarked or dated on or before the 6-month deadline to be accepted as timely filed.

    
    

    * * *

    
    

    1. Filing a complaint with the department does not constitute an election of remedies when the same or similar complaint is filed in another venue.

       
       

    2. The surety company or financial institution shall be responsible for payment of properly established complaints filed against a dealer, notwithstanding the dealer’s filing of a bankruptcy proceeding.

    
    

    (2) Upon the filing of a complaint pursuant to this section, the department shall investigate the matters complained of and if, in the opinion of the department, the facts contained in the complaint warrant such action, the department shall serve notice of the complaint to the dealer against whom the complaint has been filed at the last address of record. The notice shall be accompanied by a copy of the complaint. A copy of the notice and complaint shall also be served to the surety company, if any, that provided the bond for the dealer, which surety company shall become party to the action. The notice shall inform the dealer of a reasonable time within which to answer the complaint by

    
    

    advising the department in writing that the allegations in the complaint are admitted or denied or that the complaint has been satisfied. The notice shall also inform the dealer and the surety company or financial institution of a right to a hearing on the complaint, if requested.

    
    

    * * *

    
    

    1. Any party whose substantial interest is affected by a proceeding pursuant to this section shall be granted a hearing upon request as provided by chapter 120. Such hearing shall be conducted pursuant to chapter 120. The final order of the department, when issued pursuant to the recommended order of an administrative law judge, shall be final and effective on the date filed with the department’s agency clerk. Any party to these proceedings adversely affected by the final order is entitled to seek review of the final order pursuant to s. 120.68 and the Florida Rules of Appellate Procedure. Should a complaint forwarded by the department to the Division of Administrative Hearings be settled prior to a hearing pursuant to chapter 120, the department shall issue a notice closing the complaint file upon receipt of the administrative law judge’s order closing the complaint file, and the matter before the department shall be closed accordingly.

       
       

    2. Any indebtedness set forth in a departmental order against a dealer shall be paid by the dealer within 15 days after such order becomes final.

       
       

    3. Upon the failure by a dealer to comply with an order of the department directing payment, the department shall, in instances involving bonds, call upon the surety company to pay over to the department out of the bond posted by the surety company for such dealer or, in instances involving certificates of deposit, call upon the

    
    

    financial institution issuing such certificate to pay over to the department out of the certificate under the conditions of the assignment or agreement, the amount called for in the order of the department, not exceeding the amount of the bond or the principal of the certificate of deposit.

    
    

    * * *

    
    

    1. Nothing in this section may be construed as relieving a surety company from responsibility for payment on properly established complaints against dealers involved in a federal bankruptcy proceeding and against whom the department is prohibited from entering an order.

       
       

    2. Upon the failure of a surety company to comply with a demand for payment of the proceeds on a bond for a dealer in agricultural products, a complainant who is entitled to such proceeds, in total or in part, may, within a reasonable time, file in the circuit court a petition or complaint setting forth the administrative proceeding before the department and ask for final order of the court directing the surety company to pay the bond proceeds to the department for distribution to the complainants. If in such suit the complainant is successful and the court affirms the demand of the department for payment, the complainant shall be awarded all court costs incurred therein and also a reasonable attorney’s fee to be fixed and collected as part of the costs of the suit. In lieu of such suit, the department may enforce its final agency action in the manner provided in s. 120.69.

    
    

21. Petitioner proved that Petitioner, as a producer of agricultural products, sold and delivered to Respondent, as a dealer in agricultural products, $16,139.33 in agricultural

    
    

    products for which payment has not been made. Petitioner also proved that it incurred a $50.00 filing fee in filing its claim against Respondent and its surety.

22. Petitioner's Claim was timely filed with the Department within six months after the date of sale.

    § 604.21(1)(b), Fla. Stat.

    
    

23. Although the Department sent the Notice of Claim dated December 9, 2015, to "Turner Tree Farm, Inc. d/b/a Turner Tree and Landscape," with a copy to Great American Insurance Company, that mistake did not defeat notice of a claim made against Len- Tran, Inc., to both Respondent and its surety. A review of the Len-Tran, Inc.'s, bond clearly shows that Len-Tran, Inc., as principal, was doing business as Turner Tree and Landscape. The bond was signed by Len-Tran, Inc.'s, president, who was also the president of Turner Tree, Inc. Further, Great American Insurance Company was a signatory on the Len-Tran, Inc., bond and the Turner Tree, Inc., bond, and was, at all pertinent times, on notice that its principal that was doing business as Turner Tree and Landscape was Len-Tran, Inc., not Turner Tree Farm, Inc.

24. Petitioner named the correct entity in Petitioner's Claim, but used its fictitious name instead of Len-Tran, Inc. Both Respondent and Great American Insurance Company had actual notice that Len-Tran, Inc., was the entity that was doing

    
    

    business as Turner Tree and Landscape and, therefore, had reason to know that Len-Tran, Inc., was the Respondent named in Petitioner's Claim.

25. While Petitioner's Claim, standing alone, is sufficient to properly establish Petitioner's complaint against Respondent and its surety, under the circumstances, it is also appropriate to recognize and grant Petitioner's request to correct the legal name of Respondent on Petitioner's Claim as set forth in Petitioner's Corrected Claim.

26. Petitioner's Corrected Claim is accepted as an amendment to the petition as set forth in Petitioner's Claim. An administrative law judge has the power to allow amendments to petitions pursuant to Florida Administrative Code Rule 28-

    106.202. Petitioner's Corrected Claim "relates back" to the transactions that form the basis of Petitioner's Claim. The "relate back" doctrine is to be liberally applied and should apply in this case because the claims made in Petitioner's Corrected Claim directly relate back, and are in fact, the same claims as set forth in Petitioner's Claim. Holley v. Innovative

    Technology, Inc., 803 So. 2d 749 (Fla. 1st DCA 2001).

    
    

27. Petitioner met its burden of proving by a preponderance of the evidence that Respondent, as a dealer, and Great American Insurance Company, as surety, are indebted to

    
    

    Petitioner for unpaid invoices in the amount of $16,139.33, plus the $50.00 filing fee, for a total amount due of $16,189.33.

28. While the federal bankruptcy laws prevent the entry of orders against entities protected by the automatic stay, the fact that Respondent has filed for Chapter 11 bankruptcy relief does not relieve Great American Insurance Company, as surety, under its bond.

29. As provided in section 604.21(1)(g) quoted above, a dealer's “surety company . . . shall be responsible for payment of properly established complaints filed against a dealer, notwithstanding the dealer’s filing of a bankruptcy petition." See also § 604.21(10), Fla. Stat. ("Nothing in this section may

be construed as relieving a surety company from responsibility for payment on properly established complaints against dealers involved in a federal bankruptcy proceeding and against whom the department is prohibited from entering an order.").

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 finding that $16,189.33 ($16,139.33, plus the $50 filing fee) is the amount of indebtedness owed to the Petitioner under either Petitioner's Claim or Petitioner's Corrected Claim, and requiring Great

American Insurance Company to pay that amount to the Department to be distributed to Petitioner out of the bond posted by Great American Insurance Company for Len-Tran, Inc.

DONE AND ENTERED this 2nd day of December, 2016, in Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2016.

ENDNOTES

1/ Mr. Counihan appeared at the hearing as president and owner of Hibernia Enterprises, LLC. Attorney Olivero entered an appearance on behalf of Petitioner after the hearing.

2/ Counsel of record was Peter Mackey, Esquire, Mackey Law Group, P.A., 402 Third Avenue West, Bradenton, Florida 34205. After the hearing, Mr. Mackey was granted leave to withdraw as counsel and Mark P. Barnebey, Esquire, Blalock Walters, P.A., 802 11th Street West, Bradenton, Florida 34205, entered an appearance for Respondent.

3/ Unless otherwise indicated, all citations to the Florida Statutes are to current versions which have not substantively changed since the time of the allegations in this case.

4/ Actually, the Notice of Appearance erroneously stated on behalf of “Petitioner,” however, Mr. Barnebey's office later clarified that he was entering an appearance on behalf of Respondent.

COPIES FURNISHED:

W. Alan Parkinson, Bureau Chief Bureau of Mediation and Enforcement Department of Agriculture and

Consumer Services Rhodes Building, R-3 2005 Apalachee Parkway

Tallahassee, Florida 32399-6500 (eServed)

Great American Insurance Company

301 East 4th Street Post Office Box 2119 Cincinnati, Ohio 45202

Shiobhan Olivero, Esquire Olivero Law, P.A.

3900 North Boulevard

Tampa, Florida 33603 (eServed)

Mark P. Barnebey, Esquire Blalock Walters, P.A.

802 11th Street West Bradenton, Florida 34205 (eServed)

Lorena Holley, General Counsel Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed)

Honorable Adam Putnam Commissioner of Agriculture Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 16-000278

Orders for Case No: 16-000278