STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOLMES GARDENS ASSOCIATES, LTD., )

)

Petitioner, )

)

vs. ) CASE NO. 87-2215A

) GARDEN OF EDEN LANDSCAPE and ) NURSERY, INC and SUN BANK OF ) PALM BEACH COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing, in the above-styled matter was held on August 5, 1987, at Fort Lauderdale, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Dr. Richardo Pines

(qualified representative) Holmes Gardens Associates, LTD 1001 South Bayshore Drive Miami, Florida 33131

For Respondent: No Appearance by either Garden of

Eden Landscape and Nursery, Inc. or Sun Bank of Palm Peach County.

BACKGROUND AND PROCEDURAL MATTERS

This case began on August 11, 1986, when Petitioner, Holmes Gardens Associates, LTD., filed its sworn complaint with the Department of Agriculture and Consumer Services seeking payment from Respondent, Garden of Eden Landscape and Nursery, Inc., for Agricultural Products which allegedly had been delivered to Respondent but for which payment had not been made. Also named was Sun Bank of Palm Beach County as surety for Respondent. Sun Bank was named because Respondent had chosen to post a certificate of deposit (No.0102803) to comply with Section 604.20(1) Florida Statutes.

Because of the existence of disputed facts, the case was forwarded to the Division of Administrative Hearings for formal proceedings on or about May 20, 1987.

At the final hearing petitioner presented the testimony of two witnesses: Antonio Aroyo, the comptroller for Petitioner, and Gustavo Pines, Petitioner's sales representative. Petitioner's composite exhibit 1 and exhibit 2 were admitted into evidence. Respondents did not appear and did not offer any evidences.

There was no transcript of the hearing prepared. No proposed recommended orders were filed.

ISSUE

The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.

FINDINGS OF FACT

1. Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

   
   

2. Petitioner, Holmes Nursery & Gardens Associates, LTD., is a wholesale and retail nursery providing a variety of landscape agricultural products. The east coast regional office for Petitioner is located at 1600 SW 20th Street, Fort Lauderdale, Florida.

   
   

3. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highways Delray Beach, Florida. Respondent, Garden of Eden is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department.

   
   

4. On or about April 23, 1986, Garden of Eden ordered and received delivery of $1770.00 worth of agricultural products from Petitioner. This purchase consisted of four viburnum odo., five weeping podocarpus and one bottlebrush.

   
   

5. On or about April 25, 1986, Garden of Eden ordered and received delivery of $420.00 worth of agricultural products from Petitioner. This purchase consisted of three live oaks.

   
   

6. On or about April 28, 1986, Garden of Eden ordered and received delivery of $312.50 worth of agricultural products from Petitioner. This purchase consisted of twenty-five viburnum odo.

   
   

7. On or about April 29, 1986, Garden of Eden ordered and received delivery of $520.00 worth of agricultural products from Petitioner. This purchase consisted of four laurel oaks.

   
   

8. On or about May 5, 1986, Garden of Eden ordered and received delivery of $1,130.00 worth of agricultural products from Petitioner. This purchase consisted of forty-seven crinum lily and six hundred and twenty-two liriope muscari.

9. On or about May 13, 1986, Garden of Eden ordered and received delivery of $2,943.00 worth of agricultural products from Petitioner. This purchase consisted of seven cattley grava, and six paurotes.

   
   

10. On or about May 28, 1986, Garden of Eden ordered and received delivery of $315.00 worth of agricultural products from Petitioner. This purchase consisted of one roebelinii single and one roebelinii double.

    
    

11. On or about June 19, 1986, Garden of Eden ordered and received delivery of $300.00 worth of agricultural products from Petitioner. This purchase consisted of one paurotis 5 stem.

    
    

12. The total amount of the agricultural products purchased by Garden of Eden was $7,710.50. On August 8, 1986, Garden of Eden paid $1060.00 on the account. On September 24, 1986, another $2500.00 was remitted to Holmes Gardens on this account. The balance of indebtedness owed by Garden of Eden to Holmes Gardens for the purchases listed above is $4,150.00.

    
    

13. Petitioner claims it is due an additional sum of $436.04 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry; however, no written agreement or acknowledgment executed by Garden of Eden was presented with regard to the interest claim.

    
    

    CONCLUSIONS OF LAW

    
    

14. This complaint arises under the provision of Section 604.21, Florida Statutes (1985). Subsection (1) thereof provides that:

    
    

    Any person claiming himself to be damaged by any breach of the conditions of a bond or certificate of deposit assignment or agreement given by a licensed dealer in agricultural products as herein before provided may enter complaint thereof against the dealer and against the surety, if any, to the department, which complaint shall be a written statement of the facts constituting the complaint. Such complaint shall be filed within nine 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.

    
    

    An agricultural dealer is defined by Subsection 604.15(1), Florida Statutes (1985); to be:

    
    

    . . . any person . . . engaged within this state in the business of purchasing, receiving; or soliciting agricultural products from the producer or his 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 his agent or representative and the buyer.

    
    

15. In the case at bar, Petitioner established the delivery and acceptance of the agricultural products. Moreover, Petitioner established the amount remaining unpaid for the products to be $4,150.50. Therefore, Petitioner must prevail.

Based on the foregoing, it is

RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order granting the request of the Petitioner.

DONE and ORDERED this 2nd day of September, 1987, in Tallahassee; Florida.

JOYOUS D. PARRISH

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 2nd day of September, 1987.

COPIES FURNISHED:

Holmes Garden Associates, Ltd. 1001 South Bayshore Drive Miami, Florida 33131

Garden of Eden Landscape and Nursery, Inc. 3317 South Dixie Highway

Delray Beach, Florida 33444

Sun Bank of Palm Beach County Post Office Box 2468

Delray Beach, Florida 33447

Clinton H. Coulter, Jr., Esquire Florida Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32301

Ted Helms, Chief

Bureau of License and Bond Division of Marketing

Mayo Building

Tallahassee, Florida 32301

Docket for Case No: 87-002215

Orders for Case No: 87-002215