STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TROPICAL RESORT MARKETING, )

INC. d/b/a BROWNS' NURSERY )

AND LANDSCAPING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2533A

)

KEVIN LAUX and VICKIE )

CUBBAGE, d/b/a CITRUS AND ) PALM GARDENS and OLD REPUBLIC ) INSURANCE COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled case was held in Tallahassee, Florida, on July 5, 1995, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Wilfred Perez

Vice President

Tropical Resort Marketing, Inc. 20701 Williams Drive

North Ft. Myers, Florida 33917

For Respondent: Kevin Laux

Citrus and Palm Gardens 12426 US Highway 441

Belleview, Florida 34420 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent owes Petitioner money for landscaping plants.

PRELIMINARY STATEMENT

On April 10, 1995, Petitioner filed a Complaint alleging that it had sold to Respondent on March 21, 1995, 460 plants for $1550. The Complaint alleges that Respondent paid with a check that was later dishonored.

By Answer dated May 8, 1995, Respondent admitted to an indebtedness of

$1000 and claimed that the rest was not owed due to discrepancies in size and condition of the plants ordered and those delivered.

At the hearing, Petitioner called one witness and offered into evidence two exhibits, which were admitted. Respondent called one witness and offered into evidence no exhibits.

The parties did not order a transcript. They waived their right to file a proposed recommended order.

FINDINGS OF FACT

1. On March 21, 1995, Respondent's truck driver was referred by another nursery to Petitioner. Pursuant to instructions from Kevin Laux, coowner of Respondent, the driver was looking to purchase Washingtonian palms for resale.

   
   

2. The driver went to Petitioner's nursery, found Washingtonian palms, and telephoned Mr. Laux. Mr. Laux and Wilfred Perez, vice president of Petitioner, spoke on the telephone about the plants.

   
   

3. In the conversation, Mr. Perez represented that the Washingtonian plants were two and one-half to three feet tall, but the plants delivered were half that height. Mr. Perez also described other plants that Mr. Laux ordered. These were calypso oleanders, three types of ixora, and 15 paurotis palm. Mr. Perez described the calypso oleanders as somewhat taller than those delivered, but, more importantly, the plants were infested with yellow aphids and required insecticide treatment by Mr. Laux. The ixora were somewhat smaller than described. Also, the paurotis palms were infested with scale and mealy bugs and required more extensive insecticide treatment than did the oleanders.

   
   

4. Mr. Perez presented the driver with an invoice for $1550, which was the price upon which Mr. Perez and Mr. Laux agreed for the plants. The invoice stated: "All merchandise should be checked before accepting. We terminate our liability upon acceptance of merchandise." The driver gave Mr. Perez a check for $1550.

   
   

5. When Mr. Laux inspected the shipment early the next morning, he called Mr. Perez and complained. After inspecting other plants at the nursery, Mr. Perez called Mr. Laux the same day and they agreed on an adjustment of $187.50. In the meantime, Mr. Laux had stopped payment on the check, and three attempts by Mr. Perez to cash the check were fruitless.

   
   

6. Mr. Perez believed that the $1550 check should be paid before he issued a credit. Mr. Laux wanted a check for the credit from Mr. Perez before sending another check. There were a number of obvious solutions available, such as the issuance of a draft by Mr. Laux for the reduced amount due, payable upon receipt by the bank of the check for $1550. Instead, the parties did nothing to try to work out a means by which to credit Mr. Laux for the amount agreed except to resort to administrative litigation.

   
   

   CONCLUSIONS OF LAW

   
   

7. 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.)

   
   

8. Petitioner has the burden of proof. Department of Transportation v. J.

   W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

9. Respondent owes Petitioner the sum of $1362.50, representing the original purchase price of $1550 less the agreed-upon adjustment of $187.50 due to discrepancies in size and condition of the delivered plants.

RECOMMENDATION

It is

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent owes Petitioner the sum of $1362.50.

ENTERED on July 7, 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 July 7, 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

Wilfred Perez Vice President

Tropical Resort Marketing, Inc. 20701 Williams Drive

North Ft. Myers, FL 33917

Kevin Laux

Citrus and Palm Gardens 12426 US Highway 441

Belleview, FL 34420

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: 95-002533

Orders for Case No: 95-002533