STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MCCULLOUGH GRASS CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6192A

)

LANDTECH SERVICES, INC., )

and WESTERN SURETY COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case by video teleconference on January 27, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Alton L. McCullough, President

McCullough Grass Corporation Post Office Box 67

Balm, Florida 33503 For Respondents: No appearance

STATEMENT OF THE ISSUES

Whether Respondents are indebted to Petitioner in the amount of $8,350.00 for agricultural products (bahia sod).

PRELIMINARY STATEMENT

Petitioner, McCullough Grass Corporation, filed a Complaint against Respondent, Landtech Services, Inc., on October 11, 1993. On October 25, 1993, the Department of Agriculture served a Notice of the Complaint on Respondent, Landtech. On that day, a copy of the notice was also mailed to Respondent, Western Surety Company.

On November 10, 1993, Respondent, Landtech, filed a letter in response to the Complaint disputing the amount owed.

On November 3, 1994, the matter was referred to the Division of Administrative Hearings for a formal hearing.

On December 23, 1994, this matter was set for hearing on January 27, 1995, and this hearing ensued.

Although properly noticed, Respondents did not appear at the hearing. The parties did not file proposed recommended orders and a transcript was not provided.

FINDINGS OF FACT

1. Petitioner, McCullough Grass Corporation, is a producer of agricultural products located in Balm, Florida.

   
   

2. Respondent, Landtech Services, Inc., is an agricultural dealer located in Largo, Florida.

   
   

3. Respondent, Western Surety Company, is a surety which issued a bond to Respondent, Landtech, during times material.

   
   

4. Beginning on May 20, 1993 and subsequently on May 22, 23, 24, 25 and 28 and June 2 and 8, 1993, Respondent, Landtech, purchased from Petitioner approximately 167,000 square feet of bahia sod at five cents per square feet for a total invoiced amount of $8,350.00.

   
   

5. The terms of the sale between Petitioner and Respondent, Landtech, were for net payment within thirty days after the invoice date.

   
   

6. Petitioner timely invoiced Respondent, Landtech, and as of the date of the hearing, no payment had been made by Landtech toward the purchase of the above-referenced sod.

   
   

7. Respondent, Landtech, is indebted to Petitioner in the amount of

   $8,350.00 for the purchase of sod during May and June, 1993.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Subsection 120.57(1), Florida Statutes.

   
   

9. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

   
   

10. The authority of the Department of Agriculture is derived from Chapter 604, Florida Statutes.

    
    

11. Petitioner is a producer within the meaning of Section 604.05, Florida Statutes.

    
    

12. Respondent, Landtech Services, Inc., is a dealer within the meaning of Section 604.01, Florida Statutes.

    
    

13. Respondent, Western Surety Company, issued a bond to Respondent, Landtech, pursuant to Section 604.20, Florida Statutes.

    
    

14. Respondent, Landtech, is indebted to Petitioner for the purchase of bahia sod from Petitioner in the amount of $8,350.00

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agricultural issue a final order finding

that Respondent, Landtech Services, Inc., is indebted to Petitioner, McCullough Grass Corporation, in the amount of $8,350.00.

It is further RECOMMENDED that the Department enter its order requiring that Respondent, Landtech, pay Petitioner the sum of $8,350.00 within fifteen days of the issuance of its final order.

It is further RECOMMENDED that if Respondent, Landtech, fails to comply with its final order directing payment to Petitioner, that the Department call upon the surety, Western Surety Company, to pay over to the Department, from funds out of the surety certificate, the amount called for in its final order. 1/

RECOMMENDED this 3rd day of March, 1995, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 3rd day of March, 1995.

ENDNOTES

1/ There are two other cases filed against Respondent which are not consolidated - DOAH Case Nos. 94-6193A and 94-6194A. In the event that the surety certificate is insufficient to pay in full the amount due each complainant, the Department will distribute the proceeds pro rata among the complainants.

COPIES FURNISHED:

Alton L. McCullough, President McCullough Grass Corporation

P. O. Box 67

Balm, Florida 33503

Chris Phillips

Landtech Services, Inc. 12253 62nd Street

Largo, Florida 34643

The US Trustee 4921 Memorial Hwy.

Tampa, Florida 33634

Western Surety Company

101 South Phillips Avenue Sioux Falls, SD 57192

Brenda Hyatt

Bureau of License & Bond Dept. of Agriculture

& Consumer Services Mayo Building

Tallahassee, Florida 32399-0800

Richard Tritschler, Esquire Department of Agriculture

& Consumer Services 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: 94-006192

Orders for Case No: 94-006192