STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. T. COCHRAN and R.B. ) STRANGE d/b/a C & S TREE ) FARM, )

   )

   Petitioners, )

   )

   vs. ) CASE NO. 90-7494A

   )

   BEACH LANDSCAPING, INC. ) d/b/a LANDSCAPE TECHNOLOGIES ) and REGENCY INSURANCE )

   COMPANY, )

   )

   Respondents. )

   )

   
   

   RECOMMENDED ORDER

   
   

   This matter came on for hearing in Williston, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on April 16, 1991. Neither respondent appeared. Petitioners appeared on their own behalf. Also present and testifying was a financial analyst from the Department of Agriculture and Consumer Services, James E. Brooks, Jr.

   
   

   APPEARANCES

   
   

   Petitioners: J. T. Cochran

   C & S Tree Farm Route 1 Box 738

   Chiefland, FL 32626

   
   

   R. B. Strange C & S Tree Farm Route 1 Box 738

   Chiefland, FL 32626 STATEMENT OF THE ISSUE

   Whether respondent Beach Landscaping, Inc. is indebted to petitioners on account of the sale of agricultural products?

   
   

   PRELIMINARY STATEMENT

   
   

   On February 6, 1990, petitioners executed a complaint in accordance with Section 604.21(1), Florida Statutes (1990 Supp.). After respondent Beach Landscaping, Inc. filed an answer to the complaint, the matter was referred to the Division of Administrative Hearings, in apparent conformity with Section 604.21(6), Florida Statutes (1990 Supp.).

   FINDINGS OF FACT

   
   

   1. At all pertinent times, respondent Beach Landscaping, Inc. d/b/a Landscape Technologies or Landscape Technologies, Inc. or as Land Tech (Beach) operated as a dealer in agricultural products under license No. 2889 issued by the Department of Agriculture and Consumer Services (DACS).

      
      

   2. On Beach's behalf, respondent Regency Insurance Company posted a surety bond with DACS, No. SF00356 in the amount of $3,000, effective September 24, 1988, through September 23, 1989, to secure payment for Florida agricultural products. Testimony of Brooks.

      
      

   3. On August 30, 1989, Beach took delivery from petitioners of seven live oak trees petitioners grew near Chiefland, Florida, agreeing to pay $125 for each which, with sales tax, aggregated $927.50. Petitioners's Exhibit No. 1, Inv. No. 716280. Testimony of Cochran.

      
      

   4. Having earlier made a deposit of $637.50, Beach took delivery from petitioners on September 18, 1989, of 15 Florida-grown live oak trees, agreeing to pay $170 for each. With sales tax (but less the deposit) Beach owed petitioners $2,065.50 on account of this transaction. Petitioners's Exhibit No. 1, Inv. No. 716788. Testimony of Cochran.

      
      

   5. The next day Beach took delivery from petitioners of 15 more Florida- grown trees again agreeing to pay $170 for each. Again with sales tax and less an earlier deposit, indebtedness on account of the transaction aggregated

      $2,065.50. Petitioners's Exhibit No. 1, Inv. No. 716790. Testimony of Cochran.

      
      

   6. Finally, on September 20, 1989, Beach took delivery from petitioners of

      16 Florida-grown live oak trees, agreeing to pay $170 for each, which with sales tax and less an earlier deposit, amounted to $2,203.20. Petitioners's Exhibit No. 1, Inv. No. 716791. Testimony of Cochran.

      
      

   7. On March 3, 1990, Beach or Landscape Technologies, Inc. paid petitioners $1,000, thereby reducing indebtedness to petitioners on account of the foregoing transactions from $7,261.70 to $6,261.70. Petitioners applied a check in the amount of $1,500 to reduce the indebtedness to $4,761.70, even though the check purported to be in payment of another invoice.

      
      

   8. In the answer it filed with DACS, Landscape Technologies, Inc., admitted indebtedness of $4,661.10.

      
      

      CONCLUSIONS OF LAW

      
      

   9. Since the Department of Agriculture and Consumer Services referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1989).

      
      

   10. As a "person . . . engaged within this state in the business of purchasing, receiving or soliciting agricultural products from the producer," Section 604.15(1), Florida Statutes (1989), Beach is a dealer in agricultural products for purposes of Chapter 604, Florida Statutes, required to be licensed by Sections 604.17 and 604.18, Florida Statutes (1989) and, as a condition of licensure, to "deliver to the department a surety bond or certificate of deposit

       in the amount of at least $3,000 . . . . " Section 604.20(1), Florida Statutes (1989). Live oak trees are "agricultural products" because they are "natural products of the farm, nursery, grove [or] orchard," Section 604.15(3), Florida Statutes (1989), and petitioners are producers within the meaning of Section 604.15(5), Florida Statutes (1989).

       
       

   11. Petitioners have the burden to establish the allegations of their complaint by a preponderance of the evidence. Pine Stand Farms, Inc. v. Five Brothers Produce, Inc. and Florida Farm Bureau Mutual Insurance Co., No. 90- 6460A (DOAH: Mar. 18, 1991); Florida Farm Management, Inc. v. DeBruyn Produce Co. and Peerless Insurance Co., No. 90-2966A (DOAH; Oct. 23, 1990). Whether the invoices admitted at hearing are deemed to comprise a written agreement in themselves or are properly viewed only as evidence of a verbal agreement, see

       J.R. Sales, Inc. v. Dicks, 521 So.2d 366, 369 (Fla. 2d DCA 1988), petitioners have met their burden here. By uncontroverted evidence, they have shown that Beach is indebted to them in the amount of $4,671.10.

       
       

   12. Petitioners are entitled to an "order adjudicating the amount of indebtedness due to be paid by the dealer." Section 604.21(4), Florida Statutes (1990 Supp.) The statute further provides:

       
       

       1. Any indebtedness set forth in a departmental order against a dealer shall be paid by the dealer within 15 days after such order becomes final.

       2. Upon the failure by a dealer to comply with an order of the department directing payment, the department shall, in instances involving bonds, call upon the surety company to pay over to the department out of the bond posted by the surety for such dealer

. . . under the conditions of the assignment or agreement, the amount called for in the order of the department, not exceeding the amount of the bond

. . . . If the bond . . . is insufficient to pay in full the amount due each complainant as set forth in the order of the department, the department shall distribute the proceeds pro rata among such complainants. The proceeds from a bond . . . shall be paid directly to the department to be distributed by it to successful complainants, . . . .

Section 604.21, Florida Statutes (1990 Supp.). In the absence of other successful claimants, petitioners would be entitled to the full amount of the bond, unless Beach pays them more than $1,671.10, within 15 days of DACS' final order.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

1. That DACS order Beach to pay petitioners four thousand seven hundred sixty-one dollars and seventy cents ($4,761.70) within fifteen (15) days of the final order.

2. That, in the event Beach fails to pay petitioners four thousand seven hundred sixty-one dollars and seventy cents ($4,761.70) within fifteen (15) days of the final order, DACS order Regency Insurance Company to pay three thousand dollars ($3,000) or such lesser sum as satisfies the requirements of Section 604.21(8), Florida Statutes (1989), for disbursal to petitioners.

DONE and ENTERED this 19th day of April, 1991, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1991.

COPIES FURNISHED TO:

CHRISTOPHER B. PHILLIPS LANDSCAPE TECHNOLOGIES, INC.

523 LAKEVIEW ROAD CLEARWATER, FL 34616

REGENCY INSURANCE COMPANY POST OFFICE BOX 190 HALLANDALE, FL 33009-0190

CLINTON H. COULTER, JR., ESQUIRE DEPARTMENT OF AGRICULTURE AND

CONSUMER SERVICES TALLAHASSEE, FL 32399-0800

J. COCHRAN & RUSSELL STRANGE C & S TREE FARM

ROUTE 1, BOX 738

CHIEFLAND, FL 32626

HONORABLE BOB CRAWFORD COMMISSIONER OF AGRICULTURE DEPARTMENT OF AGRICULTURAL AND

CONSUMER SERVICES THE CAPITOL, PL-10

TALLAHASSEE, FL 32399-0810

RICHARD TRITSCHLER, GENERAL COUNSEL

DEPARTMENT OF AGRICULTURAL AND CONSUMER SERVICES

515 MAYO BUILDING TALLAHASSEE, FL 32399-0800

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

1. Cochran and R.B. Strange, d/b/a C & S Tree Farm,

   
   

   Petitioner,

   
   

   vs DOAH CASE NO. 90-7494A

   LB CASE NO. 91-0023

   Beach Landscaping, Inc., d/b/a Landscape Technologies,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS CAUSE, arising under Florida's "Agricultural License and Bond Law" (Sections 604.15 - 604.34, Florida Statutes), came before the Commissioner of Agriculture of the State of Florida for consideration and final agency action. On February 6, 1990, the Petitioner, a producer of agricultural products as defined by Section 604.15(3), Florida Statutes, timely filed an administrative complaint pursuant to Section 604.21, Florida Statutes, to collect $7,261.70 for trees it sold to Respondent, a licensed dealer in agricultural products.

   Respondent's License for the time in question was supported by a bond required by Section 604.20, Florida Statutes, written by Regency Insurance Company in the amount of $30,000. The Respondent admitted owing Petitioner $4,661.10, but disputed the balance. Subsequent to the Petitioner filing his complaint, the Respondent made payments to the Petitioner in the amounts of $1,000 and $1,500 which reduced petitioner's claimed indebtedness to $4,761.70. This matter was subsequently heard in accordance with provisions of Section 120.57(1), Florida Statutes, as reflected in the Hearing Officer's Recommended Order, rendered April 19, 1991, a copy of which is attached hereto as Exhibit, to which neither party filed written exceptions.

   Upon the consideration of the foregoing and being otherwise fully advised in the premises, it is

   
   

   ORDERED:

   
   

   1. The Hearing Officer's findings of fact are adopted in toto as this agency s findings of fact EXCEPT modified by the fact that the Surety Bond posted by Regency Insurance Company with DACS, No. SF00356, effective September 24, 1988, through September 23, 1989 was erroneously entered in the amount of

      $3,000 but in fact is for $30,000.

      
      

   2. The Hearing Officer's conclusions of law are adopted in toto as this agencies conclusions of law EXCEPT for the fact that the petitioner would be entitled to the full amount of his claim in the absence of other successful claimants because his net claimed amount of $4,761.70 is less than the posted bond amount of $30,000.

      
      

   3. The Hearing Officer's recommendation is accordingly modified to reflect that in the event that Beach Landscaping, Inc., d/b/a Landscape Technologies fails to pay petitioners Four Thousand Seven Hundred Sixty-one Dollars and seventy cents ($4,761.70) within fifteen days of the Final Order, Regency Insurance Company, as Surety for Respondent is hereby ordered to provide payment under the conditions and provisions of the bond.

Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the Agency clerk, 5th Floor, Mayo Building, Tallahassee, FL 32399-0800, and a copy of same with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.

DONE AND ORDERED this 22nd day of July, 1991.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

ANN WAINWRIGHT

Assistant Commissioner FILED with agency Clerk, this 23rd day of July, 1991.

Carol Merchant Agency Clerk

Copies furnished to:

J.T. Cochran & R.B. Strange, d/b/a C & S Tree Farm

Route 1, Box 738

Chiefland, Florida 32626

Beach Landscaping, Inc., d/b/a Landscape Technologies

523 Lakeview Road Clearwater, Florida 34616

Regency Insurance Company

P.0. Box 190

Hallandale, Florida 33009-0190

Robert T. Benton, II, Hearing Officer Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Docket for Case No: 90-007494

Orders for Case No: 90-007494