STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OLGESBY NURSERY, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 87-2226A

) 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: John Oglesby, (qualified

representative) 3714 SW 52nd Avenue

Hollywood, Florida 33023

For Respondent: No Appearance by either Garden of

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

BACKGROUND AND PROCEDURAL MATTERS

This case began on February 24, 1987, when Petitioner, Oglesby Nursery, Inc.a 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 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 21, 1987.

At the final hearing petitioner presented the testimony of two witnesses: John Oglesby, Administrative Assistant for Petitioner, and Willie Brown, Petitioner's Homestead Manager. Petitioner's exhibit 1, composite exhibit 2, and exhibit 3 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, Oglesby Nursery, Inc., is a commercial nursery providing a variety of landscape agricultural products. The principal office for Petitioner is located at 3714 SW 52nd Avenues Hollywood, Florida.

   
   

3. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highway, 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 August 22, 1986, Garden of Eden ordered and received delivery of $7673.40 worth of agricultural products from Petitioner. This purchase consisted of nine may pan coconuts and thirty green malayans trees. All of the trees were accepted and no issue was made as to their condition.

   
   

5. On or about September 2, 1986, Garden of Eden ordered and received delivery of $1190.00 worth of agricultural products from Petitioner. This purchase consisted of seven coconut malayans dwarf trees. All of the trees were accepted and no issue was made as to their condition.

   
   

6. The total amount of the agricultural products purchased by Garden of Eden from Petitioner was $8863.40. The total amount Garden of Eden paid on this account was $5000.00. The balance of indebtedness owed by Garden of Eden t o Petitioner for the purchases listed above is $3863.40.

   
   

7. Petitioner claims it is due an additional sum of $247.77 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry and since Respondent took delivery of additional products knowing interest on past due accounts to be Petitioner's policy. No written agreement of acknowledgment executed by Garden of Eden was presented with regard to the interest claim.

   
   

   CONCLUSIONS OF LAW

   
   

8. 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.

   
   

9. 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 $3863.40 together with interest in the amount of $247.77. 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:

0glesby Nursery, Inc. 3714 Southwest 52 Avenue

Hollywood, Florida 33023

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 Service

Mayo Building

Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Oglesby Nursery, Inc.

Petitioner,

1. DOAH CASE NO. 87-2226A

   LB CASE NO. 87-0041

   Garden of Eden Landscape & Nursery, Inc.

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   On September 2, 1987, the duly appointed Hearing Officer in the above- styled matter completed and submitted to the Florida Department of Agriculture and Consumer Services (the "Department") and all parties a Recommended Order. A copy of that Recommended Order is attached hereto as Exhibit "A".

   
   

   Pursuant to Rule 28-5.404, Florida Administrative Code, and Section 120.57(1)(b)8, Florida Statutes, the parties were allowed twenty (20) days in which to submit written exceptions to the Recommended Order. Neither the Petitioner nor Respondent submitted exceptions. The Recommended Order thereafter came before me as head of the Department for final agency action in this matter. Having considered the Recommended Order submitted herein and being otherwise fully advised,

   IT IS ORDERED THAT

   
   

   1. The Hearing Officer's Recommended Order is hereby adopted with the exception of $247.77 for interest which is disallowed and not considered an item under the jurisdiction of this Department as final agency action in this matter.

      
      

   2. Respondent pay the Petitioner the amount of $3,863.40 within fifteen

(15) days after this order becomes final. This order is final and effective on the date filed with the clerk of the Department.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 515 Mayo Building, Tallahassee, Florida 32301; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days from the date this Final Order is filed with the clerk of the Department.

DONE AND ORDERED this 19th day of November 1987, in Tallahassee, Florida.

DOYLE CONNER, Commissioner of Agriculture

Copies furnished to:

Oglesby Nursery, Inc. Joyous D. Parrish 3714 Southwest 52nd Avenue Hearing Officer

Hollywood, Florida 33023 DIVISION OF ADMINISTRATIVE

HEARINGS

Garden of Eden Landscape & The Oakland Building Nursery, Inc. 2009 Apalachee Parkway

3317 S. Dixie Hwy Tallahassee, Florida 32301 Delray Beach, Florida 33444

Sun Bank of Palm Beach County Post Office Box 2468

Delray Beach, Florida 33447-2468

Mr. James Maynard, Field Representative FILE CLERK

Docket for Case No: 87-002226

Orders for Case No: 87-002226