STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PONSELL'S FARM, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 83-596A

) REASONER'S TROPICAL NURSERIES, ) INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on May 5, 1983 in Orlando, Florida.

APPEARANCES

For Petitioner: Mr. Joseph H. Crow, Sr.

Post Office Box 27

Glen St. Mary, Florida 32040

For Respondent: Mr. E. S. Reasoner

Post Office Box 1881 Oneco, Florida 33558

BACKGROUND

By complaint filed with the Department of Agriculture on or about August 12, 1982, Petitioner, Ponsell's Farms, Inc., contended that Respondent, Reasoner's Tropical Nurseries, Inc., had failed to make payment of $6,300 on delivery of agricultural products furnished by Petitioner. The complaint was amended on October 20, 1982 to reduce the amount of alleged indebtedness to

$5,425. Respondent filed an answer to the complaint denying any indebtedness to Petitioner and claiming a refund in the amount of $1,404.30 1/

The matter was referred by the Department of Agriculture to the Division of Administrative Hearings on March 1, 1983 with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated March 18, 1983 the final hearing was scheduled on May 5, 1983 in Orlando, Florida. 2/

At the final hearing Mr. Joseph H. Crow, Sr., president of Petitioner, and his daughter, Dana Rhoden, presented testimony and offered Petitioner's exhibits 1-5; all were received in evidence. Mr. E. S. Reasoner, who is president of Respondent, testified on behalf of Respondent, and presented the testimony of J.

1. Popham, Jr., a registered landscape architect. He also offered Respondent's exhibits 1-4; all were received in evidence.

   There is no transcript of hearing in this proceeding. Proposed findings of fact and conclusions of law were not filed by either party.

   
   

   The issue herein is whether Petitioner is entitled to recover $5,425 from Respondent, or if Respondent is entitled to a refund of a portion of its deposit.

   
   

   Based upon all of the evidence, the following Findings of Fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner, Ponsell's Farms, Inc., operates a nursery business in Glen St. Mary (Baker County), Florida. On or about January 16, 1982 Petitioner received a telephone order from Respondent, Reasoner's Tropical Nursery, Inc., for nursery stock consisting mainly of Magnolia trees and tubs at an undisclosed price. The order was subsequently revised by Respondent on January 20 when it added more stock to its order. The total value of the order was placed at

      $8,800. Respondent operates a nursery business in Oneco (Manatee County) , Florida.

      
      

   2. There was no written agreement between the parties concerning the sale. However, the parties did orally agree that the trees were needed as soon as possible and that Respondent would provide its own transportation. Respondent also paid a $3,000 cash deposit on the order.

      
      

   3. After the order was placed, Petitioner immediately dug up the trees and placed them in a holding area pending arrival of Respondent's truck. The trees were wrapped in burlap bags and watered periodically with Petitioner's sprinkling system.

      
      

   4. Petitioner telephoned Respondent on January 20, 25 and 28 to advise him the trees had been dug and were ready to be picked up immediately. These calls were followed by a written invoice mailed to Respondent on February 10. Additional telephone calls were made during the month of February. On one occasion in January, Respondent advised Petitioner that its truck was disabled and unable to operate; however, Petitioner later learned that the truck was repaired and again operable the day after that advice was given.

      
      

   5. At some point in February, Petitioner advised Respondent by telephone that the trees were "getting bad" and needed to be picked up immediately. Finally, on March 2, Respondent's truck and driver arrived to pick up the shipment. The driver was given the opportunity to inspect the plants before they were loaded. Only a few plants were rejected. However, Respondent claimed the driver was only that and had no authority to do anything except drive the truck. The driver also borrowed a net to cover the trees while being transported. Its uncontradicted value was placed at approximately $500 and has not yet been returned to Petitioner.

      
      

   6. Upon receipt of the plants, Respondent immediately wrote Petitioner on March 5 expressing dissatisfaction with the entire shipment. Respondent also invited Petitioner to send a representative to inspect the plants. Further investigations were made by representatives of the Florida Division of Plant Industry and the Manatee County Extension Service. These confirmed that the plants had deteriorated. Petitioner's representative visited Respondent's nursery twice to recover the net and inspect the plants but for some unexplained reason was unable to do either.

   7. Respondent presented a registered landscape architect who opined that the damage to the trees was caused by improper sprinkling in the holding area. He also stated that three to four weeks was the most desirable holding time for plants. How ever, the time between which the plants were dug by Petitioner and ultimately picked up by Respondent exceeded this time period. He corroborated the testimony of Respondent that due to the condition of the plants, they will not be saleable for another year, or a total of two years after they were originally delivered.

      
      

   8. Respondent believes that plants can be dug up and maintained in a holding area for up to a year without incurring shock and damage if properly cared for. Because of this, he felt no urgency to pick up the plants despite repeated calls from Petitioner. He maintains that this is the normally accepted practice in nurseries in Florida, and his failure to pick up the plants was not unusual. Petitioner countered that the trees were properly cared for and only because of Respondent's delay in picking up the shipment did the damage occur.

      
      

   9. Both sides agree the cost of the plants as originally ordered was

      $8,800. The value of the net ($500) was not contradicted. Respondent has calculated the value of the shipment in its present state to be only $1,595.70; thus it claims it is entitled to a $1,404.30 reimbursement from the $3,000 deposit.

      
      

   10. Respondent gave no definitive reason why it ignored the requests of Petitioner and did not pick up the shipment within a reasonable time after placing the order. This delay was a direct cause of the deterioration of the shipment.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   12. Section 604.21, Florida Statutes, provides that any person who claims to be damaged by a breach of conditions of a bond given by a licensed dealer in agricultural products may file a complaint seeking redress. Here Petitioner has availed himself of that right and seeks compensation of $5,425 for the shipment of plants to Respondent on March 2, 1982.

       
       

   13. One of the difficulties in this case is the failure of the parties to reduce to writing what their respective obligations under their agreement were. 3/ However, two things are clear. First, the buyer (Reasoner) wanted the plants right away, and second, he was repeatedly advised by the seller (Ponsell's) that the shipment was dug and ready to be picked up, and after a period of time was beginning to deteriorate because of shock. Reasoner apparently was unconcerned with the delay because he assumed that, consistent with his prior nursery experience, there was no immediate danger to the plants despite the warnings of the seller. However, it is patently unfair to penalize the seller where he took all reasonable steps to provide a healthy shipment, and where he repeatedly advised the buyer of the consequences.

       
       

   14. Under these circumstances, it is concluded that Respondent was at fault for declining to pick up the shipment within a reasonable period of time; that Respondent made no apparent effort to advise Petitioner of the delay; that after receiving numerous warnings the buyer should have advised Petitioner that

he did not intend to promptly pick up the shipment and that the seller should either replant or repot the plants in question; and that any deterioration of the plants was due to inaction on the part of Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner be paid $5,425 by Respondent within fifteen

days after the date of the final order entered in this proceeding.

DONE and RECOMMENDED this 11th day of May, 1983 in Tallahassee, Florida.

DONALD R. ALEXANDER

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 11th day of May, 1983.

ENDNOTES

1/ The total bill for the agricultural products was stated to be $9,300. This amount was offset, however, by deposits of $3,000 previously paid by Respondent, and a second credit for $875 which related to a "net cover" and allowance on ten East Palatkas. Respondent claims he is due a $1,404 refund from his $3,000 deposit given to Petitioner.

2/ Orlando was selected at the suggestion of the Department's counsel since it lay somewhat between the distant locations

where Petitioner and Respondent reside.

3/ The scenario in this case is apparently a common one, though, because orders are generally placed on the telephone and all instructions or conditions are verbal. This is the nature of the business.

COPIES FURNISHED:

Mr. Joseph H. Crow, Sr. Post Office Box 27

Glen St. Mary, Florida 32040

Mr. E. S. Reasoner Post Office Box 1881 Oneco, Florida 33558

Robert A. Chastain, Esquire General Counsel

Department of Agriculture

513 Mayo Building Tallahassee, Florida 32301

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Docket for Case No: 83-000596

Orders for Case No: 83-000596