STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVERGLADES TREE & PLANT FARM, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 84-0755A

) TREES OF FLORIDA, INC., and WESTERN ) SURETY COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on June 21, 1984, at Tampa, Florida.

APPEARANCES

For Petitioner: Pete Beaty, pro se

8585 Holmberg Road

Parkland, Florida 30067

For Respondents: Respondents were not present or represented.

By COMPLAINT filed December 1, 1983, Everglades Tree and Plant Farm, Inc., Petitioner, seeks to recover $1360 from Trees of Florida, Inc. or Western Surety Company, Respondents, alleged to be due on the sale of 30 live oak trees to Respondent.

This case was originally scheduled to be heard June 1, 1984 but due to changes in the Hearing Officer's schedule was changed to May 30 with the concurrence of all parties. Respondent's attorney had depositions scheduled for May 30 but agreed to try and work around them. When the written notice of the change was received by Petitioner on May 29, Mrs. Beaty promptly telephoned the Division of Administrative Hearings to advise of a misunderstanding by Mr. Beaty regarding the date of the hearing, that he understood the hearing was for June 30, that he was out of town and was unable to be contacted by her, and that she could not get from Palmdale, near Boca Raton, to Tampa in time for the hearing. The hearing was rescheduled for June 21 and all parties notified by Notice of Hearing dated June 4, 1984.

On June 15, 1984, Mr. Pete Beaty telephoned the Hearing Officer to inquire if the June 21 hearing was still on because he had plans for a trip to Idaho during that week. He was advised the hearing date was firm and, since it was already within 5 days of the hearing, only emergency continuances would be granted. Mr. Beaty advised that he would postpone his trip to Idaho and be present at the June 21 hearing.

Respondent's MOTION FOR CONTINUANCE dated June 11, 1984, was received in the Division of Administrative Hearings' office shortly before noon on Friday, June 15 but was not delivered to the Hearing Officer that day. Hearings were conducted in Ocala on Monday, June 18 and, while there, the Hearing Officer contacted his secretary in Tallahassee and learned of the motion for continuance. At the request of the Hearing Officer, the secretary called the attorney for Respondent on June 18 to advise her the continuance would not be granted.

During the hearing in another case on June 21, the Hearing Officer received a message from Mr. Jerry Rigsby that it was urgent he be called. During a recess in that hearing, Mr. Rigsby was called at his place of business in Brandon, Florida, and Mr. Rigsby advised the Hearing, Officer that he only recently learned she hearing was scheduled to commence at 3 PM that day, that he had other commitments, that he couldn't get his witnesses assembled for the hearing, and that he wouldn't be present at the hearing. Mr. Rigsby was advised that Mr. Beaty had presumably made the trip across state from Palmdale, the hearing would proceed with or without his attendance, and it was strongly suggested Mr. Rigsby be present.

At the hearing, Pete Beaty testified on behalf of Petitioner and 5 exhibits were admitted into evidence. A photocopy of Exhibit 5 was substituted for the original check drawn by Jerry Rigsby.

FINDINGS OF FACT

1. Trees of Florida, Inc. by its president, Jerry K. Rigsby, contacted Everglades Tree and Plant Farm, Inc. to purchase 30 live oak trees. Rigsby saw the size trees he wanted and requested Petitioner to sell him those trees.

   
   

2. Petitioner refused to sell the trees desired because they had not been root pruned. Some 60 to 90 days to recover from root pruning are required before trees can be safely uprooted and replanted.

   
   

3. Other live oaks that had been sold by Petitioner to another company, Swanson and Coleman, were on the premises, had been root pruned, and Respondent inquired if it could buy those trees. Petitioner contacted Swanson and Coleman who did not need early delivery and Petitioner told Respondent it would sell Respondent 30 of those trees on a cash only basis. Respondent agreed and sent his truck to pick up the trees. They had not yet been dug and Respondent was advised it would be several days before the trees could be loaded.

   
   

4. When the trees were dug, Respondent appeared with $2000 cash and a check for the $1360 balance owed. Despite telling Rigsby the deal was strictly for cash, Beaty accepted the check and Respondent took away the trees.

   
   

5. Respondent stopped payment on the check and complained to Petitioner that the trees were below the 16 to 18 feet height Respondent had contracted for. Petitioner had its bank check with the payor bank on whom the check was written and was advised Respondent had insufficient funds on deposit to honor the $1360 check.

   
   

6. After some negotiations between the parties, Petitioner agreed to take back the 30 trees and refund Respondent's payment if Respondent would replant the trees and they all lived. Respondent never returned any trees or paid the

   $1360 balance claimed by Petitioner.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. While it is unfortunate that the motion for continuance was not received by the Hearing Officer before June 18, after Petitioner had been told a continuance would not be granted except in an emergency, Respondent was notified on June 18 that the hearing would not be continued and had adequate time to get his necessary witnesses assembled.

   
   

9. Here the Petitioner has the burden of proof by a preponderance of the evidence standard. Balino v. Department of Health and Rehabilitative Services,

   348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner presented only the testimony of its President, invoices and bills for the trees sold, and the check on which payment had been stopped. Had Rigsby appeared at the hearing, he could have testified to his version of the facts. This he did not do. Accordingly, Petitioner's testimony was not rebutted and the evidence is clear that Petitioner delivered 30 trees to Respondent for which Respondent agreed to pay

   $3360; and that $1360 of this sum is still owing to Petitioner.

   
   

10. Jerry Rigsby talked to the Hearing Officer before noon on June 21 and the hearing was scheduled to commence at 3 PM that date. Rigsby was in Brandon, some 15 miles from Tampa while Beaty was en route from Parkland, some 220 miles from Tampa, the site of the hearing. Under these circumstances, it would be expected that a Respondent with a bona fide defense to the complaint would have exerted greater effort to attend the hearing. It is

RECOMMENDED an Order be entered requiring Respondent to pay to Petitioner

$1360 owed, and if Respondent fails to do so, the bonding company be required to pay this sum from Respondent's bond in the amount of $20,000.

Entered this 29th day of June, 1984, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1984.

COPIES FURNISHED:

Pete Beaty

8585 Holmberg Road

Parkland, Florida 30067

Robert A. Chastain, Esquire Department of Agriculture and

Consumer Services Mayo Building

Tallahassee, Florida 32301

Glenn A. Bissett

Department of Agriculture and Consumer Services

418 Mayo Building Tallahassee, Florida 32301

Western Surety Company

101 South Phillips Avenue Sioux Falls, S. D. 57192 Attention: Ms. Melody Egge

Elinor P. Smith, Esquire

312 S. Brevard Avenue Tampa, Florida 33606

Honorable Doyle E. Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Docket for Case No: 84-000755

Orders for Case No: 84-000755