STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HEL-BENT TREE FARMS, INC., )

)

Complainant, )

)

STAGHORN NURSERIES, INC., )

)

Respondent, )

)

vs. ) CASE NO. 85-0639A

) PEERLESS INSURANCE COMPANY, )

)

Surety/Co-Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 3, 1985, at Florida City, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The Complainant was represented at the hearing by Thomas Joseph Helmly, the President of the Complainant corporation. There was no appearance by either the Respondent or the Surety/Co- Respondent.

INTRODUCTION

By notice of hearing issued on April 11, 1985, all parties were notified that the formal hearing in this case would commence at 1:00 P.M. on Monday, June 3, 1985, at the Commission Chambers, Florida City Courthouse, 404 W. Palm Drive, Florida City, Florida. The Hearing Officer arrived at the hearing location at approximately 12:35 P.M. and remained at the hearing location awaiting the arrival of the parties. The representative for the Complainant arrived at approximately 12:45 P.M. The Hearing Officer waited until 1:25 P.M. to commence the hearing. The hearing lasted until approximately 1:55 P.M. Following the hearing the Hearing Officer remained at the hearing location until approximately 2:10 P.M. At no time between

12:35 P.M. and 2:10 P.M. did any representative of the Respondent or the Surety/Co-Respondent make any appearance.

ISSUES

This case arises from a complaint filed by Hel-Bent Tree Farms, in which it is asserted that Staghorn Nurseries, Inc., is indebted to the Complainant in the amount of $1,980.00 for agricultural products sold to the Respondent. Mr. Thomas Joseph Helmly testified as a witness for the Complainant and also offered several documents and photographs as exhibits. The exhibits were numbered 1 through 13 and were all received in evidence.

FINDINGS OF FACT

Based on the testimony of the witness and on the exhibits offered and received in evidence, I make the following findings of fact:

1. On March 29, 1984, the Complainant sold agricultural products consisting of 80 Bottle Brush Trees and 5 Dalbergia Trees to the Respondent. The agreed upon price for the trees totaled $2,825.00.

   
   

2. On March 29, 1984, when Respondent's truck driver picked up the trees, Respondent paid a deposit of $650.00 towards the total amount due. On May 19, 1984, the Respondent made an additional payment of $195.00. The Respondent has not made any further payments on this debt. At the time of this hearing there remained due and owning a balance of $1,980.00.

   
   

3. At the time the subject trees were loaded on Respondent's truck the trees were in good condition. The trees were loaded in a proper manner.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable statutes, rules, and court decisions, I make the following conclusions of law:

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57, Florida Statutes.

5. Chapter 604, Florida Statutes, provides for the licensing of bonded dealers in agricultural products in this state and a procedure whereby, following the completion of an administrative process which may include a hearing before a Hearing Officer of the Division of Administrative Hearings, the Commissioner of Agriculture may issue a Final Order directing the dealer to pay the sums found due. Upon a failure of the dealer to make such payment, the surety on the bond may be called upon to make good on the bond.

   
   

6. The competent substantial evidence at hearing establishes that the Respondent is indebted to the Complainant in the amount of $1,980.00 for agricultural products sold to the Respondent.

RECOMMENDATION

On the basis of all of the foregoing, it is recommended that a Final Order be entered directing Staghorn Nurseries, Inc., to pay Hel-Bent Tree Farms, Inc., the amount of $1,980.00 for the agricultural products described in the findings of fact, above. In the event the Respondent fails to make such payment within 15 days of the Final Order, it is recommended that the surety be required to pay pursuant to the bond.

DONE and ORDERED this 6th day of June, 1985, at Tallahassee, Florida.

Hearings

Hearings

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative

this 6th day of June, 1985.

COPIES FURNISHED:

Robert A. Chastain, Esquire Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32301

Mr. Joe W. Kight

Bureau of License and Bond Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32301

The Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Hel-Bent Tree Farms, Inc. 12850 N. Calusa Club Drive Miami, Florida 33186

Staghorn Nurseries, Inc. 8000-118 Avenue, North Largo, Florida

Peerless Insurance Company Attn: Mr. William Klausner

62 Maple Avenue Keene, NH 03431

Docket for Case No: 85-000639

Orders for Case No: 85-000639