STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JON'S NURSERY, INC., CONCEPTS ) IN GREENERY, INC., and SPRING ) HILL NURSERY, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 91-0251A

)

U.S. LAWNS OF ORLANDO, INC. ) and BANKERS INSURANCE )

COMPANY, )

)

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on March 20, 1991, before Robert

1. Meale, Hearing Officer of the Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   For Petitioners: Pen Smith, Sales Manager

   Jon's Nursery, Inc.

   24546 Nursery Way Eustis, Florida 32726

   
   

   Charles Brown, Nursery Manager Concepts in Greenery, Inc.

   16366 Old Cheney Highway Orlando, Florida 32833

   
   

   David Rubright, President Spring Hill Nursery, Inc. 1921 Hill Drive

   Apopka, Florida 32703 For Respondents no appearance

   STATEMENT OF THE ISSUE

   
   

   The issue in this case is whether Petitioners sold nursery plant materials to Respondent U.S. Lawns of Orlando, Inc. for which the latter did not pay.

   PRELIMINARY STATEMENT

   
   

   By Complaint dated September 14, 1990, Jon's Nursery, Inc. alleged that U.S. Lawns of Orlando, Inc. purchased on May 24 and June 6, 1990, live plants to a total of $898.35, for which U.S. Lawns did not pay. By Answer filed December 10, 1990, U.S. Lawns partly denied the allegations, admitted indebtedness of

   $731.40, and stated as to the balance of $166: "Balance is not known to be purchased by US Lawns of Orlando, Inc. Pat Oyler took these plants to another job."

   
   

   By Complaint dated October 10, 1990, Concepts in Greenery, Inc. alleged that U.S. Lawns of Orlando, Inc. purchased on May 31, 1990, ten 15-gallon crepe myrtles for a total of $318, for which U.S. Lawns did not pay. By Answer filed December 10, 1990, U.S. Lawns denied the allegations and stated: "We have no record of purchasing these plants nor think they were installed on any US Lawns job that we would have received the proceeds."

   
   

   By Complaint dated September 28, 1990, Spring Hill Nursery, Inc. alleged that U.S. Lawns of Orlando, Inc. purchased plant materials in the amount of $2100.72, for which U.S. Lawns did not pay. By Answer filed December 10, 1990, U.S. Lawns denied the allegations and stated: "U.S. Lawns did not benefit from the sale of these materials. We are not sure all of these plants were purchased for U.S. Lawns of Orlando, Inc."

   
   

   At the hearing, each of the persons listed as making an appearance was determined by the undersigned to be a qualified representative. Each Petitioner called its qualified representative as its sole witness, and each Petitioner offered into evidence one exhibit. All exhibits were admitted.

   
   

   FINDINGS OF FACT

   
   

   1. On May 24, 1990, Jon's Nursery, Inc. sold U.S. Lawns of Orlando, Inc. 460 Juniper plants, for $731.40 including tax. The plants were picked up by U.S. Lawns employee Mark Rosetta.

      
      

   2. U.S. Lawns of Orlando, Inc. does not dispute the validity of the claim arising out of the May 24 sale. However,

      U.S. Lawns has never paid for these plant materials.

      
      

   3. On June 6, 1990, Jon's Nursery, Inc. sold U.S. Lawns of Orlando, Inc. 40 Juniper plants and 50 grass plants for $166.95 including tax. These plants were picked up by Jeffrey Miller, who was an employee of U.S. Lawns.

      
      

   4. U.S. Lawns disputes the validity of the June 6 sale. However, the owner of U.S. Lawns, Glen Jaffee, never responded to numerous telephone calls from Pen Smith of Jon's Nursery, Inc. concerning the unpaid invoices. Nor did anyone respond to a certified demand letter that Mr. Smith mailed to U.S. Lawns on August 29, 1990, or the numerous monthly statements reflecting the unpaid balances.

      
      

   5. An officer and employee of U.S. Lawns of Orlando, Inc., Pat Oyler, had ordered the plant materials by telephone from Jon's Nursery, Inc. Mr. Oyler had previously ordered plant materials on behalf of U.S. Lawns from Jon's Nursery, which had always been paid. On two occasions subsequent to the sales in question, Mr. Oyler ordered plant materials from Jon's Nursery, Inc. on behalf of U.S. Lawns, but paid for them with his personal check, and Mr. Smith told him that he would need, in such cases, to order the plants in his name.

      
      

   6. On May 31, 1990, Concepts in Greenery, Inc. sold U.S. Lawns ten 15-gallon crepe myrtles for $318 including tax. These items were picked up by Jeffrey Miller driving a U.S. Lawns truck. These plant materials had been ordered by Mr. Oyler of

      U.S. Lawns.

      
      

   7. Concepts in Greenery, Inc. had also previously done business with U.S. Lawns and been paid. In a sale which had taken place on March 25, 1990, Mr Oyler had ordered about $400 worth of plant materials on behalf of U.S. Lawns. Additionally, in its application for credit with Concepts in Greenery, Inc. dated April 11, 1988, Mr. Jaffee, as president of U.S. Lawns of Orlando, Inc., had certified that Mr. Oyler was vice president of U.S. Lawns of Orlando, Inc.

      
      

   8. Repeated telephone calls and monthly statements from Concepts in Greenery, Inc. to U.S. Lawns of Orlando, Inc., as well as a certified letter dated September 19, 1990, to Mr. Jaffee, were unsuccessful in obtaining any response whatsoever from the latter company.

      
      

   9. Spring Hill Nursery, Inc. made several sales of a variety of plant materials to U S. Lawns of Orlando, Inc. Including tax, these sales were as follows: March 13, 1990, for

      $131.18; March 26, 1990, for $544.05; April 5, 1990, for $12.24;

      April 6, 1990, for $90.10; April 17, 1990, for $593.60; April

      18, 1990, for $55.65; and April 27, 1990, for $92.75. An eighth invoice dated June 4, 1990, for $581.15 has been excluded

      because it bears the names of Oyler Construction Company, Inc., Bentley Green, and Pat Oyler as the persons invoiced and nowhere mentions U.S. Lawns. The total of the seven sales to U.S. Lawns is $1519.57.

      
      

   10. Spring Hill Nursery, Inc. repeatedly tried to contact Mr. Jaffee and U.S. Lawns, including by letter dated August 27, 1990, but never received any response to its demand for payment.

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Sections 120.57(1) 604.21(6), Florida Statutes.

       
       

   12. Jon's Nursery, Inc. proved that U.S. Lawns of Orlando, Inc. owes it $898.35. Concepts in Greenery, Inc. proved that

U.S. Lawns of Orlando, Inc. owes it $318. Spring Hill Nursery, Inc. proved that U.S. Lawns of Orlando, Inc. owes it $1519.57.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring U.S. Lawns of Orlando, Inc. to pay the above-indicated sums to the respective parties.

DONE AND ENTERED this 9th day of April, 1991, in Tallahassee, Florida.

ROBERT E. MEALE

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 9th day of April, 1991.

COPIES FURNISHED:

Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810

Richard Tritschler General Counsel Department of Agriculture

515 Mayo Building Tallahassee, FL 32399-0800

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture

508 Mayo Building Tallahassee, FL 32399-0800

Pen Smith, Sales Manager Jon's Nursery, Inc.

24546 Nursery Way

Eustis, FL 32726

Charles Brown, Nursery Manager Concepts in Greenery, Inc.

16366 Old Cheney Highway Orlando, FL 32833

David Rubright, President Spring Hill Nursery, Inc. 1921 Hill Drive

Apopka, FL 32703

Glen Jaffee 612 Bryn Mawr

Orlando, FL 32804

Bankers Insurance Company 10051 5th Street North St. Petersburg, FL 33702

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. Some agencies allow a larger period within 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.

Docket for Case No: 91-000251

Orders for Case No: 91-000251