STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA SOD OF HENDRY COUNTY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-0078A

) DANNY YATES LANDSCAPING, INC. and ) OHIO CASUALTY INSURANCE COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Ft.

Myers, Florida, on March 30, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Attorney Kristy C. Shaffer

110 North Main Street

LaBelle, Florida 33935

For Respondent: John Charles Coleman

Coleman & Coleman

2300 McGregor Boulevard Ft. Myers, Florida 33901

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to payment from Respondent for sod that it sold.

PRELIMINARY STATEMENT

By Complaint dated November 18, 1993, Petitioner alleged it sold Respondent sod on October 5, 6, 11, 12, and 14, 1993, for a total of $2976. The Complaint alleges that Respondent never paid for the sod.

By Answer dated December 27, 1993, Respondent asserted that the sod was of inferior quality and not as represented. The Answer asserts that Respondent had to replace some of the sod.

At the hearing, Petitioner called six witnesses and offered into evidence one exhibit. Respondent called two witnesses and offered into evidence eight exhibits. All exhibits were admitted except Respondent Exhibits 2, 8, and 9.

Neither party ordered a transcript. Each party filed a proposed recommended order, and rulings on the proposed findings are in the appendix.

FINDINGS OF FACT

1. Petitioner grows sod and sells it to persons who are in the business of installing sod. Respondent installs sod for its customers, such as homeowners, businesses, and schools. Both parties are experienced in the sod business, although Respondent has more experience than Petitioner with Floratam sod.

   
   

2. Respondent is a large user of sod. Petitioner sold from 3-6 loads daily to Respondent from July to October, 1993. Until the loads in question, there were no problems, and Respondent paid for the sod.

   
   

3. On October 5, 1993, Petitioner sold Respondent 18 pallets of Floratam sod. At the agreed-upon rate of 6 cents per square foot, the price of this sod was $432. The next day, Petitioner sold Respondent 36 pallets of Floratam Sod for $864. On October 11, Petitioner sold Respondent 34 pallets for $816. The next day, Petitioner sold Respondent 18 pallets for $432. And on October 14, Petitioner sold Respondent 18 pallets for $432. The total price of the Floratam sod sold to Respondent was thus $2976.

   
   

4. For each sale, Petitioner cut the sod and loaded it on the truck of an independent contractor hired by Respondent to transport the sod to the customer's site for installation. For each load, the driver signed an invoice indicating the amount of sod and stating:

   
   

   Your signature acknowledges acceptance. Any claims must be made within 24 hours of delivery or pick up. A 1.5 percent (18 percent per annual) service charge will be added to all accounts 30 days past the invoice date. In the event it is necessary to turn the invoice over for collection or the same has to be collected upon demand of an attorney[,] purchaser agrees to pay all attorney's fees and costs for such collection.

   
   

5. The sod was in below-average condition. Petitioner agreed to sell it, and Respondent agreed to buy it, in "as is" condition. The sole warranty attaching to the sod was that Respondent could assert a claim against Petitioner if the claim was asserted within 24 hours of pick up.

   
   

6. Sod harvested in early October has undergone the stress of summer weather, in which heat and moisture can damage the grass and leave it in weakened condition. There was little sod left in the area, Respondent's demand for sod due to contractual commitments was great, and Respondent was left with few options but to try to use Petitioner's sod. The price paid by Respondent was somewhat reduced to reflect the below-average condition of the sod.

   
   

7. Several factors militate against Respondent's claim that the sod was of such poor quality as to warrant cancellation of the invoiced amounts. First, Respondent did not timely assert a claim against the sod. Respondent did not assert a claim within the 24 hours set forth in the invoices. More important, Respondent ignored subsequent billings for the sod and did not complain about

   the sod until Petitioner's president spoke with Respondent's president and demanded payment. This conversation took place about 70-80 days after the sales.

   
   

8. Other important factors undercutting Respondent's defense are the satisfaction of other purchasers of sod in the same time period and the questionable cultivation practices of some of Respondent's customers. Several persons bought Floratam sod from Petitioner in late September and early October. In most cases acknowledging that the sod was in below-average condition, these purchasers reported that they knew that the sod was purchased in "as is" condition and that, with appropriate irrigation and fertilizing, the sod was successfully established in the customers' property. The record suggests that the some of Respondent's customers, including a major institutional customer, may not have been as careful in maintaining the newly installed sod that was already in somewhat stressed condition.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The agreement between Petitioner and Respondent called for Respondent to pay $2976 for the subject sod, which was sold "as is." The only exception to the "as is" nature of the sale was that Respondent could assert claims against the sod within 24 hours of pick up. Respondent did not assert claims against the sod within 24 hours and did not assert claims at all until contacted personally and asked for payment.

    
    

11. The evidence does not support Respondent's legal defenses based on the Uniform Commercial Code. There were no oral or written express warranties except that the sod was Floratam, which it was. The evidence establishes that the implied warranty of merchantability was excluded. Even if it had not been, the sod satisfied this warranty. The evidence establishes that the implied warranty of fitness for an intended purpose was excluded. Even if it had not been, the evidence fails to establish that Respondent, which is experienced in the sod business, relied on the skill or judgment of Petitioner to furnish suitable goods. See Sections 672.313, 672.314, 672.315 and 672.316.

    
    

12. In its proposed recommended order, Petitioner also asks for interest at the rate of 18 percent annually and attorneys' fees. The interest is recoverable. However, the attorneys' fees were omitted from the Complaint. Also, no evidence was presented at hearing on attorneys' fees, nor did the hearing officer leave the record open for additional evidence on attorneys' fees. The claim for attorneys' fees is improper.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding Respondent liable for the sum of $2976, plus interest at

18 percent annually, and, if Respondent does not pay said amount, ordering the surety to pay said amount, up to the amount of the bond.

ENTERED on April 20, 1994, 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 on April 20, 1994.

APPENDIX

Rulings on Petitioner's Proposed Findings 1-8: adopted or adopted in substance. Rulings on Respondent's Proposed Findings

1-2: adopted or adopted in substance. 3-6: rejected as subordinate.

7-8: adopted or adopted in substance. 9: rejected as subordinate.

10-14: adopted or adopted in substance. 15: rejected as subordinate.

16-22: rejected as unsupported by the appropriate weight of the evidence.

23: rejected as unsupported by the appropriate weight of the evidence to the extent of implication that Respondent initiated the call to express his concerns about the

sod quality.

24-26: rejected as subordinate.

27: rejected as recitation of evidence and subordinate. 28-30: rejected as subordinate.

31: [omitted from proposed recommended order].

32: rejected as irrelevant given "as is" nature of subject transaction, as well as limitation of this remedy to sod against which timely claims are made.

COPIES FURNISHED:

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

Richard Tritschler, General Counsel Department of Agriculture

The Capitol, PL-10 Tallahassee, FL 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture

508 Mayo Building Tallahassee, FL 32399-0800

Attorney Kristy C. Shaffer

P.O. Drawer 1820 LaBelle, FL 33935

John Charles Coleman Coleman & Coleman 2300 McGregor Blvd. Ft. Myers, FL 33901

Ohio Casualty Insurance Co. Legal Department

136 North Third St.

Hamilton, OH 45025

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.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Florida Sod of Hendry Co., Inc., Petitioner,

vs. DOAH CASE NO. 94-0078A

LB CASE NO. 94-0017

Danny Yates Landscaping, Inc., and Ohio Casualty Insurance Company,

Respondents.

/

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 November 18, 1993, the Petitioner, Florida Sod of Hendry Co., Inc., 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 $2,976 for sod 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 Ohio Casualty Insurance Company in the amount of $6,600. The Respondent's answer submitted by their attorney, denied the claim as valid, admitted no indebtedness and requested a hearing in this case, therefore, this matter was referred to the Division of Administrative Hearings for an administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. An administrative hearing was held in this matter on March 30, 1994. The Hearing Officer rendered his Recommended Order on April 20, 1994, a copy of which is attached hereto as Exhibit, to which neither party filed written exceptions with this Department.

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.

   
   

2. The Hearing Officer's conclusions of law are adopted in toto as this agency's conclusions of law EXCEPT references to the question of interest. The Department has no jurisdiction to award interest under the purview of Florida Statutes, Sections 604.15-34.

   
   

3. The Hearing Officer's recommendation is accordingly modified to reflect that the Respondent is ordered to pay Petitioner $2,976. The recommendation is further modified to stipulate said payment to be paid within fifteen (15) days after this Order becomes final and in the event Respondent fails to pay Petitioner $2,976 within fifteen (15) days of the Final Order, Ohio Casualty Insurance Company, as Surety for Respondent is hereby ordered to provide payment to BOB CRAWFORD, COMMISSIONER OF AGRICULTURE, under the conditions and provisions of the bond. This Order is final and effective on the date filed with the Clerk of the Department. As modified, the recommendation is approved and adopted as the appropriate disposition of this case.

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 6th day of June, 1994.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

ANN H. WAINWRIGHT

Assistant Commissioner of Agriculture Filed this 6th day of June 1994.

Agency Clerk

Copies Furnished:

Mr. Larry Perkins, President, Florida Sod of Hendry County, Inc., P.O. Box 159, LaBelle, FL 33935

Mr. Daniel L. Yates, President, Danny Yates Landscaping, Inc., 1009 SE 9th Terrace, Cape Coral, FL 33990

Kristy C. Shaffer, Esquire, P.O. Drawer 1820, LaBelle, FL 33935

John Charles Coleman, Esquire, Coleman & Coleman, 2300 McGregor Blvd., Fort Myers, FL 33901

Ohio Casualty Insurance Company, Legal Department, 136 North Third Street, Hamilton, OH 45025

Robert E. Meale, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550

Mr. David Bokan, Field Representative

Docket for Case No: 94-000078

Orders for Case No: 94-000078