STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

J & L FARMS, INC., 1/ )

)

Petitioner, )

)

vs. ) CASE NO. 88-5627A

) BLOOMINGDALE LANDSCAPE NURSERY, ) INC., and SOUTHEASTERN CASUALTY ) & INDEMNITY INSURANCE COMPANY, )

)

Respondents. )

)

Raymond E. Crainer, Esquire, of Kissimmee, for Petitioner. Eileen H. Griffin, Esquire, of Brandon, for Respondents.

Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

RECOMMENDED ORDER

A formal administrative hearing was held in this case in Tampa on January 20, 1989, to determine whether the Petitioner, J & L Farms, Inc. (J & L) 2/ should prevail on its complaint against the respondents, Bloomingdale Landscape Nursery, Inc. (Bloomingdale), and its surety, Southeastern Casualty & Indemnity Insurance Company (southeastern), that Bloomingdale owes J & L approximately

$7000 for sod which J & L delivered but has not been paid for. Bloomingdale contends that a subcontractor under Bloomingdale ordered the sod and owes the money.

FINDINGS OF FACT 3/

1. J & L Farms, Inc., was at all times pertinent to this case a producer of agricultural products, namely, sod, in the State of Florida.

   
   

2. At all times pertinent to this proceeding, Bloomingdale was a licensed dealer in agricultural products and was bonded by Southeastern, its surety, in the sum of $20,000.

   
   

3. In January, 1988, Bloomingdale was in the business of contracting landscape work, including landscape work on a cemetery in Brooksville, Florida, and landscape work on a project for the construction of a tennis center on David Island in Tampa, Florida. On both of these jobs, Bloomingdale subcontracted the sod portion of the work to a company called All-American Sod, whose owner and operator was a man named Gene Salerno.

   
   

4. To perform the Davis Island subcontract, Salerno contacted J & L by telephone for purposes of purchasing sod. He spoke to Bennie Williamson, J & L's manager.

5. Williamson was uncomfortable doing business with All-American because Salerno's company was not bonded and was new in the business. Williamson asked and was told that the sod was for landscape work All-American had under contract with Bloomingdale at Davis Island. He also said he expected to need sod for the cemetery job in Brooksville, too.

   
   

6. Williamson confirmed that Bloomingdale was bonded and called some of J & L's competitors to verify their experience with Bloomingdale. He then telephoned Bloomingdale and spoke to its president, Donald Luke.

   
   

7. Williamson told Luke he was reluctant to do business with All-American because it was not bonded and was new in the business. He asked if J & L could bill Bloomingdale and All-American jointly for the sod (so that J & L would have the benefit of Bloomingdale's bond.)

   
   

8. Luke did not agree to cover All-American on its $20,000 Southeastern bond. Instead, he tried to explain to Williamson that Bloomingdale was doing the Davis Island landscape work as a subcontractor under a general contract a company called Sun Contracting had with the City of Tampa. He explained that both Bloomingdale and the general contractor had payment and performance bonds covering the sod being purchased by All- American and that J & L's dealings with All-American were fully protected under the payment and performance bonds. Luke agreed that, if J & L desired, Bloomingdale would do everything possible to see that any payment made to All-American for the Davis Island work would be made payable jointly to All-American and J & L so that J & L would be assured of receiving payment out of contract funds.

   
   

9. Williamson and Luke had no discussion about the cemetery project in Brooksville.

   
   

10. In January, 1988, J & L sold and delivered to All- American at Davis Island 178 pallets of Floratam sod for $6408. J & L charged $484 for the pallets themselves.

    
    

11. In late January and early February, 1988, J & L also sold and delivered to All-American at Davis Island 36 pallets of bahia sod for $660. J & L also charged $144 for the pallets themselves. All-American moved at least some of this sod to Brooksville to be installed at the cemetery project under All-American's contract with Bloomingdale.

    
    

12. Unbeknownst to Bloomingdale, J & L put Bloomingdale, along with All- American, on the invoices for all the sod. J & L delivered the invoices to All- American.

    
    

13. At the Davis Island jobsite, the general contractor questioned whether all of the sod delivered for laying at the project actually had been delivered and installed. While Sun Contracting, Bloomingdale and All-American were involved in attempting to resolve the dispute, Sun did not pay Bloomingdale under their subcontract, Bloomingdale did not pay All-American under their subcontract, and All-American did not pay J & L.

    
    

14. J & L not only did not get paid for its sod but eventually could not contact Gene Salerno or All-American. In approximately June, 1988, J & L forwarded copies of the invoices to Bloomingdale and demanded payment. Bloomingdale refused to pay anything for the Floratam sod until it received contract monies from Sun Contracting, as agreed, after resolution of the dispute

    over the amount of sod delivered to and laid at the Davis Island site. It denied direct responsibility to pay for the sod, taking the position that J & L's contract was with All-American, not Bloomingdale. Bloomingdale denied any knowledge of, or responsibility for, the bahia sod, again saying that the contract for that sod was between J & L and All-American.

    
    

    CONCLUSIONS OF LAW

    
    

15. Section 604.21, Florida Statutes (1987), provides for the procedure by which "[a]ny 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" may file a complaint with the Department of Agriculture and Consumer Services.

    
    

16. Under Section 604.20(1), Florida Statutes (1987), the bond or certificate of deposit referred to in Section 604.21 "shall be conditioned to secure the faithful accounting for and payment to producers or their agents or representatives of the proceeds of all agricultural products handled or purchased by such dealer."

    
    

17. Under the facts of this case, Bloomingdale did not "handle or purchase" either the J & L Floratam sod, at least some of which was installed at the tennis center on Davis Island, or the J & L bahia sod installed at the cemetery in Brooksville. J & L dealt with All-American, not Bloomingdale. The evidence did not prove that Bloomingdale agreed to be a joint obligor with All- American for payment for the sod so as to be jointly and severally liable to J &

L. Bloomingdale's Section 604.20 bond is not available to J & L for payment for the sod.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order that Petitioner, J & L Farms, Inc., take nothing on its complaint and that the respondents, Bloomingdale Landscape Nursery, Inc., and Southeastern Casualty & Indemnity Insurance Company, go hence without day.

DONE and ENTERED this 2nd day of March, 1989, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1989.

ENDNOTES

1/ At final hearing, an ore tenus lotion to correct the caption to reflect the correct name of the Petitioner was granted.

2/ See footnote 1, above.

3/ Explicit rulings on the Petitioner's proposed bindings of fact may be found in the attached Appendix to Recommended Order, Case No. 88-5627A.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5627A

To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact:

1.-4. Accepted and incorporated to the extent necessary.

1. Rejected as contrary to facts found.

2. Accepted and incorporated to the extent necessary.

3. Rejected as contrary to facts found.

4. Irrelevant.

COPIES FURNISHED:

Raymond E. Cramer, Esquire

3377 West Vine Street, Suite 310

Kissimmee, Florida 32741

Eileen H. Griffin, Esquire Tittsworth and Curry, P.A. Sunshine State Bank Building

420 West Brandon Boulevard Brandon, Florida 33511

Honorable Doyle Conner Commissioner of Agriculture

The Capitol Tallahassee, FL 32399-0810

Mallory Horne General Counsel

Department of Agriculture and Consumer Services

513 Mayo Building Tallahassee, FL 32399-0800

Docket for Case No: 88-005627

Orders for Case No: 88-005627