STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

A. DUDA & SONS, INC., )

)

Petitioner, )

)

vs. ) CASE NOS. 91-6388A

) 91-6389A

ST. AMOUR SOD SERVICES, INC., )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on February 11, 1992, in Sanford, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Barry L. Miller

230 East Marks Street Post Office Box 1966 Orlando, Florida 32802

For Respondent: Gary A. Ralph

2272 Airport Road South, Suite 101

Naples, Florida 33962 STATEMENT OF THE ISSUES

The central issue in these cases is whether the Respondent is indebted to Petitioner as alleged; and, if so, in what amount.

PRELIMINARY STATEMENT

Case no. 91-6388A began on March 21, 1991, when the Petitioner, A. Duda & Sons, Inc., filed a notice of filing complaint that claimed damages against the Respondent, St. Amour Sod Services, Inc., for alleged nonpayment related to the purchase of agricultural products. More specifically, Petitioner claimed that under the provisions of the agricultural bond and license law found in Chapter 604, Florida Statutes, that it was entitled to recover from Respondent's bond amounts owed for the purchase of sod. The amount claimed in Case no. 91-6388A was $45,080.25.

Similarly, in Case no. 91-6389A, the Petitioner claimed an amount of

$4,664.00 was owed by Respondent for the purchase of sod for the period January 30, 1991 through March 4, 1991, a different bonding period from the previous claim. After the requests were filed with the Department of Agriculture and Consumer Services, the Respondent was afforded an opportunity to respond. The

Department received a letter requesting an administrative hearing which was deemed timely. Consequently, the cases were forwarded to the Division of Administrative Hearings for formal proceedings on October 7, 1991.

At the hearing, Petitioner presented the testimony of the following witnesses: Henry Clark, Petitioner's credit manager; and David Basquin, foreman at Petitioner's LaBelle sod farm. Petitioner's exhibits numbered 1 through 4 were admitted into evidence. Gregory St. Amour, president of the Respondent company; Bryan Novak, vice president; and John Seefried, a private investigator; testified on behalf of the Respondent. Exhibits numbered 1 and 2 were admitted into evidence for the Respondent.

A transcript of the proceedings has not been filed. After the hearing, the parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. In January, 1990, the Respondent filed an application for credit with the Petitioner. The terms and conditions of the credit application provided: "All written 'Terms and Conditions of Sale' on invoices, statements, contracts or other written agreements must be observed and performed as stated." Further, the application provided:

   
   

   Payment of all amounts due shall be made not later than 30 days from the billing date.

   Amounts in default will be subject to a SERVICE CHARGE of 1 1/2 % per month (18 % Per Annum) on the unpaid balance. Failure to make

   payment within terms will result in cancellation of credit.

   
   

2. Following acceptance of that application, Respondent sought to purchase sod from Petitioner's LaBelle sod farm. Invoices issued by Petitioner to Respondent at the time of the delivery of the sod provided that the amounts owed would be payable upon receipt of invoice. Further, the printed invoice required the purchaser to make claims within 24 hours of delivery or pick up. The invoices reiterated the 18 percent service charge for past due accounts.

   
   

3. From December, 1990, through January 17, 1991, Respondent purchased and accepted in excess of $45,000 worth of sod from the Petitioner. The invoices for those purchases are identified in this record as Petitioner's exhibit 2.

   
   

4. From January 30, 1991 until March 4, 1991, Respondent purchased and accepted $4,664.00 worth of sod from the Petitioner. The invoices for those purchases are identified in the record as Petitioner's exhibit 3.

   
   

5. In February, 1991, when the Petitioner became concerned about nonpayment for the amounts claimed, contact with the Respondent was made for the purpose of resolving the matter. When those efforts failed to secure payment, the Petitioner instituted action through the Department of Agriculture against the Respondent's bond. The Petitioner claimed $45,080.25 was due for the

   invoices prior to January 30, 1991. The Petitioner claimed $4,664.00 was owed for the invoices subsequent to January 30, 1991.

   
   

6. Subsequent to its claims, Petitioner received payments from the Respondent in the following amounts: $5,000.00 on March 11, 1991; $5,000 on March 26, 1991; and $2,000.00 on April 30, 1991. Applying the total of those payments ($12,000) to the indebtedness on the first claim reduces that amount to

   $33,080.25.

   
   

7. Prior to the claims being filed, Respondent had notified Petitioner that some sod deliveries had been unacceptable because of the quality of the sod or the amount. Respondent claimed the Petitioner had "shorted" the square footage amounts per pallet so that Respondent was being charged for a pallet that did not contain the requisite square footage of sod. On one occasion, in January, 1991, the Petitioner gave Respondent a credit in the amount of

   $1,173.75 for either refund on poor quality sod or a shortage.

   
   

8. The Respondent continued to purchase sod from Petitioner until its credit was no longer accepted by Petitioner, i.e. March 4, 1991. Respondent did not, within 24 hours of receipt of sod, make a claim regarding the quality of the sod or the amount.

   
   

9. By letter dated March 14, 1991, the Respondent, through its attorney, advised Petitioner as follows:

   St. Amour Sod Services, Inc., does not dispute the balance due to you as set forth in your letter and they will pay same in payments that are being determined now. For your information, the balance accrued because of the loss of several of our customers resulting from the poor quality of sod purchased from your firm.

   
   

10. Respondent did not timely challenge the quality of the sod accepted, and did not present evidence regarding its alleged poor quality.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

12. Under Florida law, a dealer in agricultural products must be licensed by the Department of Agriculture and Consumer Services (Department) to transact business in the State of Florida. Applicants for licensure must provide a surety bond before licensure approval is granted by the Department.

    
    

13. At all times material to this case, Respondent was a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes. At all times material to this case, Respondent was bonded by Aetna Casualty and Surety Company, 151 Farmington Avenue, Hartford, Connecticut.

    
    

14. "Agricultural products" as used in Section 604.15(1), Florida Statutes, is defined in Section 604.15(3), Florida Statutes, as:

    
    

    [T]he natural products of the farm, nursery, grove, orchard, vineyard, garden, and apiary (raw or manufactured); livestock, milk and milk products; poultry and poultry products; and limes (meaning the fruit Citrus aurantifolia, variety Persian, Tahiti, Bearss, or Florida Key

    limes) produced in the state, except tobacco, tropical foliage, sugarcane, and citrus other than limes.

    
    

    Sod is an agricultural product under the foregoing definition.

    
    

15. Any person claiming to be damaged by a dealer in agricultural products may make a claim against the surety bond within six months from the sale. Such person bears the burden of proof regarding the allegations and must establish by a preponderance of the evidence the amount claimed as damages.

    
    

16. In the instant case, Petitioner timely filed a complaint against the Respondent and has established, by a preponderance of the evidence, that the Respondent is indebted to Petitioner in the following amounts: $33,080.25 for the first bond period, $4,664.00 for the second. Based on its written agreement, Petitioner is entitled to recover its service charge of 18 percent on the unpaid balances.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Agriculture and Consumer Services enter a final order finding that Respondent is indebted to Petitioner in the amounts of

$33,080.25 and $4,664.00, with service charge to be computed through the date of the final order; directing Respondent to make payment of the amounts to Petitioner within 15 days following the issuance of the order; and, notifying all parties that if such payment is not timely made, the Department will seek recovery from Respondent's surety, Aetna Casualty and Surety Company.

DONE and ENTERED this 13th day of March, 1992, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1992.

APPENDIX TO CASE NOS. 91-6388A AND 91-6389A

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER:

1. Paragraphs 1 through 4 are accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT:

1. Paragraph 1 is accepted.

2. Paragraphs 2, 3, 4, 6, 7, and 8 are rejected as contrary to the weight of the credible evidence or unsupported by the record in this case.

3. With regard to paragraph 5, that portion of the paragraph which states the amount of payments made by Respondent ($12,000) is accepted. Otherwise, rejected as stated in 2. above.

COPIES FURNISHED:

Barry L. Miller

P.O. Box 1966 Orlando, FL 32802

Gary A. Ralph

2272 Airport Rd. South, Ste. 101

Naples, FL 33962

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

Richard Tritschler General Counsel Dept. of Agriculture

& Consumer Svcs.

The Capitol, PL-10

Tallahassee, FL 32399-0810

Aetna Casualty & Surety Company Attn: Legal Dept.

151 Farmington Ave.

Hartford, CT 06156

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: 91-006388

Orders for Case No: 91-006388