STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIKE'S GREEN THUMB, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-4970A

) CELEBRATION ACRES, INC., & ) FLORIDA FARM BUREAU GENERAL ) INSURANCE COMPANY, AS SURETY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case in West Palm Beach, Florida on October 20, 1994, before Suzanne F. Hood, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael Raimondi, President

Mike's Green Thumb, Inc. 4700 Palm Ridge Boulevard Post Office Box 6279

Delray Beach, Florida 33445

For Respondent: David Urs, Vice President

Celebration Acres, Inc.

3300 University Drive, Suite 514 Coral Springs, Florida 33065

STATEMENT OF THE ISSUE

The issue is whether Celebration Acres, Inc., or its surety, Florida Farm Bureau General Insurance Company, is liable for funds due Mike's Green Thumb, Inc., for the sale of agricultural products.

PRELIMINARY STATEMENT

On or before May 2, 1994, Petitioner, Mike's Green Thumb, Inc. (Petitioner), filed an Amended Complaint with the Florida Department of Agriculture and Consumer Services (Department) alleging that Respondent, Celebration Acres, Inc. (Respondent), or its surety and Co-Respondent, Florida Farm Bureau General Insurance Company (Co-Respondent), owed Petitioner funds in the amount of $14,562.35 for the sale of nursery stock. The Department sent a Notice of Filing of an Amended Complaint and copies of the Amended Complaint, together with supporting evidence, to Respondent and Co-Respondent. Neither Respondent nor Co-Respondent filed a timely response or requested a hearing.

On or about August 16, 1994, the Department issued an Order directing Respondent to pay Petitioner the full amount claimed within fifteen (15) days from the date the Order became final. In the event Respondent failed to make said payment, the Order directed Co-Respondent to pay as surety. The Order informed the parties that it would become final unless one of them requested a hearing pursuant to Chapter 120, Florida Statutes in fourteen (14) days.

By letter dated August 22, 1994, Respondent timely requested a formal hearing which was held in West Palm Beach, Florida, on October 20, 1994.

Petitioner presented the testimony of one witness and presented two exhibits which were admitted into evidence without objection. Respondent presented the testimony of one witness and one exhibit which was admitted into evidence without objection. Co-Respondent did not make an appearance.

At the conclusion of the hearing, both parties were given an opportunity to file late exhibits on or before November 3, 1994. Neither party took advantage of this opportunity.

On November 28, 1994, Respondent filed a letter dated November 22, 1994, which references a prior letter and attached documentation dated October 26, 1994. Because the October 26 letter was never filed with the Division of Administrative Hearings, the undersigned contacted Mr. David Urs, Respondent's representative, on November 30, 1994. Mr. Urs stated that he sent the October

26 letter to the Division of Administrative Hearings by United States Mail on the 26th or 27th of October 1994.

On November 30, 1994, the undersigned issued a Notice of Ex Parte Communication and Order to Show Cause. The Order required Respondent to show cause, on or before December 12, 1994, why the record in this case should not be closed as of November 3, 1994. Receiving no response to the show cause order, the undersigned entered an Order Closing Record on December 21, 1994.

The hearing transcript was filed with the Clerk of the Division of Administrative Hearings on November 8, 1994. To date neither party has filed proposed recommended orders or late exhibits.

FINDINGS OF FACT

1. Petitioner is a Florida corporation with its principal place of business in Delray Beach, Florida, where it engages in the production of nursery stock. Mr. Michael Raimondi testified at the hearing on Petitioner's behalf.

   
   

2. Respondent is a Florida corporation located in Coral Springs, Florida. At the time of the transactions which are the subject of this proceeding, Respondent was licensed as a dealer in agricultural products supported by Surety Bond Number BD 0692212 (the Bond) in the amount of $16,000. Respondent engages in the business of landscaping. Mr. David Urs testified at the hearing on Respondent's behalf.

   
   

3. Co-Respondent is a corporation, licensed to do business in the state of Florida as an insurer. As surety, it provided the Bond for Respondent. The conditions and provisions of the Bond are to assure proper accounting and payment to producers for agricultural products purchased by Respondent.

   
   

4. From October of 1993 through February of 1994, Petitioner sold nursery plants of its own production to Respondent at a sale price in the total amount of $14,562.35.

5. The parties have done business together for over six (6) years. During that time, they have not established a course of performance or course of dealing regarding the terms of payment. In fact they have consistently argued over this point through out their business relationship.

   
   

6. Respondent did not always send Petitioner a purchase order. When Petitioner received purchase orders, they consistently stated at the top that the terms of payment would be "net 30." However, on some occasions, the Respondent also stamped the purchase orders with the following additional payment terms:

   
   

   1. Terms of payment are per contract between general contractor and Celebration Acres, Inc.; and (b) Material sold by this purchase order once installed by Celebration Acres, Inc. belongs to the owner of the property where installed. Payment is due to supplier when payment is received by Celebration Acres, Inc. Suppliers are encouraged to protect themselves by sending a notice to owner.

      
      

7. Regardless of whether Petitioner received a purchase order, it always sent Respondent an invoice stating that payment was due thirty (30) days after the date of invoice.

   
   

8. The parties agree that subject invoices reflect the correct sale price for plants delivered and accepted.

   
   

9. On or before October 11, 1993, Respondent bought 1343 Liriope and 132 Indian Hawthorne from Petitioner for a total sale price of $4,419.25. The express terms of payment for this sale was net in 30 days as set forth in Purchase Order No. 157 and Invoice No. 6504. Mr. Urs, Respondent's witness, testified that Purchase Order No. 157 is incomplete and that Respondent sent Petitioner a subsequent purchase order containing the additional payment terms referenced above in paragraph six (6). Mr. Urs' testimony is contrary to the more compelling testimony of Mr. Raimondi, Petitioner's witness.

   
   

10. Respondent admits that it owes and has not paid Petitioner $4,419.25 for Invoice No. 6504. Payment for this invoice is past due.

    
    

11. On or before December 16, 1993, Respondent sent Petitioner Purchase Order No. 193 for 200 Variegated Liriope. This purchase order contains the additional payment terms referenced above in paragraph six (6), i.e., payment was due pursuant to the terms of the contract between Respondent and the City of Oakland Park. Pursuant to this order, Petitioner delivered and Respondent accepted 230 plants as described in Respondent's Invoice Nos. 7528 and 7713 for a total sale price of $379.50.

    
    

12. Respondent admits that it owes and has not paid Petitioner $379.50 for Invoice Nos. 7528 and 7713. Record evidence indicates that Respondent has completed its work for the City of Oakland Park. Additionally, there is no pending dispute over that contract; Respondent expected payment by May 26, 1994.

    
    

13. Petitioner has met its burden of proof regarding Invoice Nos. 7528 and 7713. Respondent presented no evidence to show that payment is not due. Accordingly, payment for Invoice Nos. 7528 and 7713 is past due.

14. On or about November 29, 1993, Respondent sent Petitioner Purchase Order No. 175 requesting shipment of various kinds of nursery stock. Respondent stamped this invoice with the terms referenced above in paragraph six (6).

    After receiving the order, Petitioner sent Respondent Invoice Nos. 7236 and 7408 reflecting a total sale price in the amount of $5,490.50.

    
    

15. At the formal hearing, Respondent produced a copy of a Final Release of Lien signed by Petitioner's representative indicating that Petitioner received payment for Invoice Nos. 7236 and 7408. The release appears to bear an imprint of Petitioner's corporate seal.

    
    

16. Petitioner asserts that Respondent never paid for Invoice Nos. 7236 and 7408. Mr. Raimondi, Petitioner's representative, occasionally signed a release before receiving funds so that a general contractor would pay Respondent, who promised, in turn, to pay Petitioner. Respondent faxed the subject release to Mr. Raimondi who signed it and faxed it back to Respondent. Someone at Respondent's office notarized Mr. Raimondi's signature.

    
    

17. Respondent presented no evidence to show whether Petitioner ever received payment for Invoice Nos. 7236 and 7408. Respondent admits that it would occasionally request the execution of a release before paying Petitioner for plant material. Mr. Urs, Respondent's representative, testified that Respondent may have paid Petitioner in one of two ways: (a) by Respondent's check (company or certified); or (b) by the general contractor's check payable jointly to Respondent and Petitioner.

    
    

18. The testimony of Mr. Urs, Respondent's representative, concerning the parties' execution of releases in general, and the subject release in particular, is contrary to the more compelling testimony of Mr. Raimondi, Petitioner's representative.

    
    

19. Petitioner has met its burden of proving that payment for Invoice Nos. 7236 and 7408 is past due.

    
    

20. On or about January 27, 1994, Respondent sent Petitioner Purchase Order Nos. 232 and 234 for assorted nursery plants. Both purchase orders contain the additional payment terms referred to in paragraph six (6) above. In response to these orders, Petitioner sent Respondent Invoice Nos. 8026 and 8027 for $660.75 and $612.35 respectively.

    
    

21. Respondent admitted at the formal hearing that it owed Petitioner for Invoice Nos. 8026 and 8027 and that payment was past due.

    
    

22. On or about February 14, 1994, Petitioner sent Respondent Invoice No. 8244 for 1500 Fern Sword listing the sale price in the amount of $3,000. Neither party produced a corresponding purchase order for this invoice and Petitioner did not recall receiving one.

    
    

23. Mr. Urs, Respondent's representative, testified that Respondent owed Petitioner for Invoice No. 8244, but that payment is not due because Respondent has not received payment from the general contractor or the owner, Palm Beach County. Petitioner admits it has been in contact with the general contractor's bond company in an attempt to collect the debt. However, there is no persuasive record evidence that Petitioner ever agreed to defer payment until the general contractor or owner paid Respondent.

24. Petitioner has met its obligation of proving that payment for Invoice No. 8244 is past due.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Sections 120.57(1) and 604.21(6), Florida Statutes (1993).

    
    

26. Section 604.20(1), Florida Statues, provides in pertinent part that dealers in agricultural products must:

    
    

    make and deliver to the department a surety

    bond or certificate of deposit . . . which 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.

    
    

    Section 604.20(1), Florida Statutes.

27. Section 604.21, Florida Statutes, provides a procedure by which: any 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 enter complaint thereof against the dealer and against the surety, if any, to the department

    . . . within 6 months from the date of sale in instances involving direct sales . . .

    
    

    Section 604.21, Florida Statutes.

    
    

28. Petitioner is a "producer" of "agricultural products" as defined respectively in Sections 604.15(5) and 604.15(3), Florida Statutes.

    
    

29. Respondent is a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes.

    
    

30. Petitioner has the burden of proving by a preponderance of the evidence that Respondent owes Petitioner $14,562.35 for eight invoices. Florida Dept. of Transportation v. J. W. C. Co., Inc., 396 So. 2d 778, 787 (Fla. 1st DCA 1981). Petitioner has met this burden by presenting credible evidence that payment for each invoice is past due. On the other hand, Respondent presented no persuasive evidence that Respondent paid Petitioner or that payment was not due for any particular invoice.

    
    

31. The Hearing Officer must "consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence." Heifetz v. Dept. of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). In the instant case, the undersigned found Mr. Raimondi's testimony more compelling than Mr. Urs'.

    
    

32. Moreover, the parties never expressly agreed on the terms of payment. Their intent is ambiguously expressed in the purchase orders and invoices.

There was no established course of dealing or performance. Therefore, as a matter of law, Respondent's terms as set forth in paragraph six (6) above are not conditions precedent to Respondent's duty to pay Petitioner. Peacock Const. Co. v. Modern Air Conditioning, Inc., 353 So. 2d 840.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, I recommend that the Department of Agriculture and Consumer Services enter a Final Order directing Respondent and/or its surety and Co-Respondent to pay Petitioner

$14,562.35.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22 day of December 1994.

SUZANNE F. HOOD, Hearing Officer 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 21st day of October, 1994.

COPIES FURNIHSED:

Florida Farm Bureau General Insurance Company (Legal Dept.)

Post Office Box 147030 Gainesville, Florida 32614

Michael Raimondi, President Mike's Green Thumb, Inc.

Post Office Box 6279

Delray Beach, Florida 33445

David S. Urs, Vice President Celebration Acres, Inc.

3300 University Dr. #514 Coral Springs, Florida 33065

Richard Tritschler, Esquire

Dept. of Agriculture & Consumer Services The Capitol PL-10

Tallahassee, Florida 32399-0810

The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL - 10

Tallahassee, Florida 32399-0810

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: 94-004970

Orders for Case No: 94-004970