STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA SOD OF HENDRY CO., ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-6873A

) J&K ENTERPRISES OF LEE COUNTY ) and PREFERRED NATIONAL )

INSURANCE COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing was held on February 14, 1995. Petitioner's representative and witness, as well as the court reporter, attended the hearing in Ft. Myers. Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, participated by videoconference from Tallahassee.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Larry Perkins

Florida Sod of Hendry County, Inc. Post Office Box 159

LaBelle, Florida 33935 For Respondents: no appearance

STATEMENT OF THE ISSUE

The issue in this case is whether J&K Enterprises of Lee County owes Petitioner money for sod.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 13, 1994, Petitioner alleged that it sold several loads of Bermuda sod to Respondent J&K Enterprises of Lee County, Inc. Petitioner alleges that it did not receive full payment for the sod.

By Answer dated June 27, 1994, J&K Enterprises alleged that it paid Petitioner a total of $5000 and that Petitioner had charged J&K Enterprises for more sod than Petitioner had delivered.

At the hearing, Petitioner called one witness and offered into evidence one exhibit, which was admitted. Respondents did not appear.

Petitioner did not order a transcript and waived its right to file a proposed recommended order.

FINDINGS OF FACT

1. On January 29, 1994, Petitioner invoiced Respondent J&K Enterprises for five loads of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $3139.

   
   

2. On February 10, 1994, Petitioner invoiced Respondent J&K Enterprises for four loads of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was

   $2776.

   
   

3. On February 24, 1994, Petitioner invoiced Respondent J&K Enterprises for five loads of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was

   $3946.

   
   

4. On March 3, 1994, Petitioner invoiced Respondent J&K Enterprises for one load of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $736.

   
   

5. On March 10, 1994, Petitioner invoiced Respondent J&K Enterprises for one load of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $656.

   
   

6. The total of the five invoices is $11,253.

   
   

7. Respondent J&K Enterprises made the following payments on account: April 10, 1994--$1000; April 29, 1994--$1000;

   
   

   May 17, 1994--$1000; May 25, 1994--$1000; June 24, 1994-- $1000; September

   23, 1994--$2000; October 21, 1994--$500; and December 15, 1994--$250.

   
   

8. The total of the eight payments is $7750.

   
   

9. Respondent J&K Enterprises still owes Petitioner the difference of

   $3,503. Despite repeated demands, Respondent refuses to pay the remaining balance.

   
   

10. The parties agreed on the delivery tickets that Respondent J&K Enterprises would pay 18 percent on all unpaid balances after 30 days. Respondent has paid in full the first two invoices. Respondent paid all but

    $2111 of the third invoice, which balance began to earn interest on March 24, 1994. The fourth invoice of $736 began to earn interest on April 3, 1994, and the last invoice of $656 began to earn interest on April 10, 1994. Interest through March 1, 1995, on the February 24 invoice is $355.02 plus $1.04 per day thereafter. Interest through March 1, 1995, on the March 3 invoice is $120.38 plus $0.36 per day thereafter. Interest through March 1 on the March 10 invoice is $104.64 plus $0.32 per day thereafter.

    
    

    CONCLUSIONS OF LAW

    
    

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

12. Petitioner has proved that Respondent J&P Enterprises of Lee County owes it $3503 plus interest, as of March 1, 1995, of $580.04 and $1.72 per day thereafter.

RECOMMENDATION

It is hereby

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order ordering J&K Enterprises of Lee County to pay the amount set forth above and, if said amount is not paid, ordering Preferred Mutual Insurance Company to pay said amount, up to its maximum liability on the bond.

ENTERED on February 16, 1995, 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 February 16, 1995.

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

Larry Perkins

Florida Sod of Hendry County, Inc.

P.O. Box 159 LaBelle, FL 33935

J&K Enterprises of Lee County 2290 Bruner Lane

Ft. Myers, FL 33912

Preferred Mutual Insurance Co. Legal Department

P.O. Box 40-7003

Ft. Lauderdale, FL 33340-7003

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: 94-006873

Orders for Case No: 94-006873