STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MID FLORIDA SOD COMPANY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 85-2060A

) AMERICAN SOD, INC. and PEERLESS ) INSURANCE COMPANY, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above-styled case on October 8, 1985, in Kissimmee, Florida.

APPEARANCES

For Petitioner: Raymond E. Cramer, Esquire

Post Office Box 607

St. Cloud, Florida 32769

For Respondent: Gary L. Curtis, President

American Sod Company, Inc. Post Office Box 1370 Longwood, Florida 32750

No appearance for Peerless Insurance Company.

By complaint filed with the Bureau of License and Bond, Department of Agriculture and Consumer Services (Department) on March 12, 1985 and subsequently submitted to the Division of Administrative Hearings on June 19, 1985 for a formal hearing pursuant to Section 120.57(1), Florida Statutes, Petitioner seeks payment of a balance due it on bahia grass sod sold to Respondent American Sod Company, Inc., (American) between January 16, 1985 and January 30, 1985 and payment for pallets used to handle the sod during the same period that were not returned.

In support of the allegation Petitioner presented the testimony of Raymond E. Cramer and Willa Cramer. Petitioner's Exhibit 1 was received into evidence. Respondent presented the testimony of Gary L. Curtis. Respondent's Exhibit 1 was received into evidence. James E. Brooks, Department Field Representative was called by the undersigned.

At the close of the hearing, Gary L. Curtis requested a transcript. Time frames for posthearing proposed findings of fact and conclusions of law and the recommended order were to be calculated from the date of the transcript. In January, 1986 it became apparent that Respondent American (Gary L. Curtis) had not provided the advance to the court reporter for the transcript and, therefore, an Order To Show Cause was entered setting time frames for submission of post hearing proposed findings of fact and conclusions of law, provided the transcript was not furnished within fifteen (15) days. The transcript was not provided by Respondent American within fifteen (15) days or later.

Neither Petitioner nor Respondent submitted posthearing proposed findings of fact and conclusions of law as allowed by Section 120.57 (1)(b)(4), Florida Statutes (supp. 1984).

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearings the following facts are found:

1. At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983). However, since the pallets were not an agricultural product produced by Petitioner and were not considered in the price of the bahia sod but were exchanged back and forth between Petitioner and his customer, including Respondent American, they are not considered to be an agricultural product in this case and are excluded from any consideration for payment under Section 604.15-604.30, Florida Statutes. The amount charged Respondent American for these pallets was $1,188.00.

   
   

2. At all times pertinent to this proceeding, Respondent American was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 3774 by the Department, and bonded by Respondent Peerless Insurance Company (Peerless) in the sum of $15,000 - Bond No. SK-2 87 38.

   
   

3. At all times pertinent to this proceeding, Respondent Peerless was authorized to do business in the State of Florida.

   
   

4. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983).

   
   

5. During the month of January, 1985 Respondent American purchased numerous pallets of bahia grass sod from Petitioner paying $16.00 per pallet but has refused to pay for 240 pallets at

   $16.00 per flat for a total amount of $3,840.00 picked up by Respondent American's employees and billed by Petitioner between January 16, 1985 and January 26, 1985.

   
   

6. Respondent American did not contest having received 204 pallets of bahia grass sod represented by invoice number. 6774- for 18 pallets on 1/16/85; 6783, 6785, and 6788 for 18 pallets each on 1/17/85; 6791, 6793, 6794, 6795, and 6800 for 16 pallets each on 1/18/85 and 6799 for 18 pallets on 1/18/85, 6831 for 18 pallets on 1/28/85; and 6834 for 16 pallets on 1/30/85 but contested invoice numbers 6835 and 6836 for 18 pallets each on 1/26/85.

   
   

7. Gary L. Curtis stipulated at the hearing that Respondent American had received the 36 pallets of bahia grass sod represented by invoice numbers 6835 and 6836 which left only the matter of Respondent American's contention that it was owed credit for 20 pallets of bahia sod received in December, 1984 that was of poor quality and fell apart and had to be replaced because it could not be used.

   
   

8. The evidence was insufficient to prove that any of the sod purchased by Respondent American from Petitioner fell apart or was of poor quality and as a result could not he utilized by Respondent American.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding.

   
   

10. Respondent American was a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes (1983) and, as such, was required to be licensed by the Department pursuant to Section 604.17, Florida Statutes (1983), and, as a requirement of licensing, had to show the Department evidence of a surety bond or a certificate of deposit in accordance with Section

    604.20, Florida Statutes (1983) and Rule 5H-1.01, Florida Administrative Code. Respondent American was properly and sufficiently bonded by Respondent Peerless for the sum of

    $15,000.00.

    
    

11. The Petitioner a "producer" of agricultural products as defined by Section 604.15(5), Florida Statutes (1983) filed a timely complaint against Respondent American and its surety, Respondent Peerless in accordance with Section 604.21, Florida Statutes (1983) alleging, among other things, that Respondent American had refused to pay for agricultural products as defined by Section 604.15(3), Florida Statutes (1983) sold and delivered to Respondent American between January 16, 1985 and January 30, 1985. However the pallets charged to Respondent American by Petitioner do not come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes (1983) but, in any event, the pallets were not produced by Petitioner and the cost of the pallet is not included in price of the bahia grass sod as the cost of a box is included in the price of box of fruit.

    
    

12. The issue of whether or not Petitioner is entitled to payment for the pallets in contention does not come within the jurisdiction of this forum and, therefore no determination has been made in that regard.

    
    

13. The evidence is clear that Respondent American purchased

240 pallets of bahia grass sod from Petitioner between January 16, 1985 and January 30, 1985 for $16.00 per pallet for a total amount of $3,840.00.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law recited herein it is RECOMMENDED that Respondent American be ordered to pay to the Petitioner the sum of $3,840.00. It is further RECOMMENDED that if Respondent American fails to timely pay the Petitioner as ordered then Respondent Peerless be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983).

Respectfully submitted and entered this 10th day of March, 1986, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 10th day of March, 1986.

COPIES FURNISHED:

Doyle Conner, Commissioner Department of Agriculture and

Consumer Services The Capitol

Tallahassee, Florida 32301

Robert Chastain, General Counsel Department of Agriculture and

Consumer Services

Mayo Building, Room 513 Tallahassee, Florida 32301

Ron Weaver, Esquire Department of Agriculture and

Consumer Services Mayo Building

Gary L. Curtis, President American Sod Company, Inc. Post Office Box 1370 Longwood, Florida 32750

Mid Florida Sod Company 4141 Canoe Creek Road

St. Cloud, Florida 32769

Peerless Insurance Company 611 Aymore Road/Suite 202 Winter Park, Florida 32789

Raymond E. Cramer Esquire Post Office Box 607

St. Cloud, Florida 32769

Docket for Case No: 85-002060

Orders for Case No: 85-002060