STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POTTINGER’S NURSERY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 97-0806A

) BOTANICAL RESOURCES, INC. and ) NEW YORK SURETY COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing from Tallahassee, Florida, by videoconference on April 28, 1997. The parties, attorneys for the parties, witnesses, and court reporter participated by videoconference in Ft. Myers, Florida.

APPEARANCES

For Petitioner: Richard Bellinger

900 Sunset Vista Drive Ft. Myers, Florida 33919

For Respondent Botanical Resources, Inc.:

Burt Ingels

8951 Bonita Beach Road Suite 525-373

Bonita Springs, Florida 34135 STATEMENT OF THE ISSUE

The issue is whether Respondent Botanical Resources, Inc. owes Petitioner money for landscaping plants.

PRELIMINARY STATEMENT

By Complaint dated December 18, 1996, Petitioner alleged that Respondent owed it $17,849.29 for landscaping plants that Petitioner sold Respondent.

By Answer dated January 27, 1997, Respondent denied the claim and demanded a formal hearing.

Prior to the hearing, Respondent New York Surety Company filed a notice stating that it would not attend the final hearing, but intended to comply with the obligations under the bond, if directed to do so by the Department of Agriculture and Consumer Services.

At the hearing, Petitioner called one witness, and Respondent called one witness. Neither party offered any exhibits into evidence.

The parties did not order a transcript and did not file proposed recommended orders.

FINDINGS OF FACT

1. Petitioner sold landscaping plants to Respondent Botanical Resources, Inc. (Respondent) for several years. There has never been any dispute between the parties as to the quality of the plants, and there is no such dispute now.

2. At some point, Respondent fell behind in paying the account. The parties agreed that Respondent would pay for each

   delivery of plants with a check that Petitioner would hold until Respondent replaced it with a cashier’s check.

3. Over time, Respondent fell behind in redeeming the checks.

4. Respondent’s representative admitted at the hearing that Respondent owed Petitioner at least $17,849.29 for landscaping plants delivered to Respondent by Petitioner.

5. Respondent’s representative explained that the company had been owned and operated by his late wife, who had been diagnosed with ovarian cancer and, after a short but expensive battle in which Respondent’s resources were exhausted, succumbed in April 1996.

   CONCLUSIONS OF LAW

   
   

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

7. Petitioner proved that Respondent owes it $17,849.29 for landscaping plants that Petitioner delivered to Respondent, for which Respondent never paid Petitioner.

RECOMMENDATION

It is

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent Botanical Resources, Inc. owes Petitioner the sum of $17,849.29,

which, if unpaid, is due from Respondent New York Surety Company under the bond.

ENTERED in Tallahassee, Florida, on June 4, 1997.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings on June 4, 1997.

COPIES FURNISHED:

Richard Bellinger

900 Sunset Vista Drive Ft. Myers, Florida 33919

Burt Ingels

8951 Bonita Beach Road Suite 525-373

Bonita Springs, Florida 34135

Richard Tritschler, General Counsel Department of Agriculture and

Consumer Services The Capitol PL-10

Tallahassee, Florida 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture

and Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

New York Surety Co. Legal Department

80 Cutter Mill Road

Great Neck, New York 11021

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-000806

Orders for Case No: 97-000806