STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA GROWERS INCORPORATED, )

)

Petitioner, )

)

vs. ) Case No. 97-3843A

) TOULIA XIOTAS, INCORPORATED, ) d/b/a GULF BREEZE LANDSCAPING, )

)

Respondent, )

)

and )

) FRONTIER INSURANCE COMPANY OF ) NEW YORK, )

)

Co-Respondent and Surety. )

)

RECOMMENDED ORDER

On October 24, 1997, a formal administrative hearing was held in this case in Sarasota, Florida, before Richard Hixson, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: W. R. Walden, President

Sarasota Growers, Incorporated 1001 Sinclair Drive

Sarasota, Florida 34240 For Respondent: No appearance.

For Surety: No appearance.

STATEMENT OF THE ISSUES

The issues for determination in this case are whether Respondent is indebted to Petitioner for the purchase of agricultural products, and whether such indebtedness constitutes a breach of the conditions of the bond posted by the Surety for

which payment should issue.

PRELIMINARY STATEMENT

On July 10, 1997, Petitioner filed a timely Complaint with the Florida Department of Agriculture and Consumer Services alleging that Respondent had failed to properly make payment to Petitioner in the amount of $1575.50 for the sale of agricultural products in violation of Sections 604.15-34, Florida Statutes. On July 21, 1997, the Department issued a Notice of Filing of Complaint to Respondent and the Surety.

Respondent, by and through its manager, David Joy, thereafter filed a timely Answer to the Complaint admitting the indebtedness in the amount of $1575.50, and requesting a hearing in this matter. The Surety did not file an Answer, or otherwise respond to the Complaint.

On August 21, 1997, pursuant to Section 604.21, Florida Statutes, the matter was referred to the Division of Administrative Hearings to conduct the administrative hearing. The Notice of Hearing was issued on October 1, 1997. The matter was set for hearing on October 24, 1997. A Prehearing Order was entered on October 8, 1997. The Notice of Hearing and Prehearing Order were sent to Respondent and the Surety at the addresses provided by the Department. Neither the Respondent nor the Surety complied with, nor otherwise responded to the Prehearing Order.

The formal hearing was held on October 24, 1997. At hearing Petitioner presented the testimony of its president, W.R. Walden. Petitioner also presented one composite exhibit consisting of the

invoices for agricultural products sold to Respondent which was received in evidence. Neither Respondent nor the Surety appeared at hearing. Mr. Walden testified on the record as to his efforts to comply with the Prehearing Order and to locate a representative of Respondent, including manager David Joy. Mr.

Walden stated that he was informed that Respondent has ceased operation, and correspondence to Respondent was forwarded to a post office box. Efforts to locate Respondent on the day of the hearing at the telephone number given to the Department were unsuccessful.

The hearing in this matter was transcribed. On October 29, 1997, Petitioner filed a Summary of Proposed Findings of Fact.

FINDINGS OF FACT

1. Petitioner, SARASOTA GROWERS INCORPORATED (SARASOTA GROWERS), is a producer of agricultural products, primarily nursery ornamental plants, in Sarasota County, Florida. W.R. Walden is president of SARASOTA GROWERS.

2. Respondent, TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING (GULF BREEZE), is a licensed dealer in agricultural products, holding License Number 10091, issued by the Department of Agriculture and Consumer Services. At all material times, David Joy was the manager of GULF BREEZE.

3. Co-Respondent and Surety, FRONTIER INSURANCE COMPANY OF NEW YORK (FRONTIER), posted Bond Number 5004806 in the amount of

   $9,999.00 in support of Respondent's license as a dealer in agricultural products. The inception date of the bond was

   April 30, 1996, and the expiration date of the bond was April 30, 1997.

4. In early 1997, Respondent GULF BREEZE through its manager, David Joy, contacted SARASOTA GROWERS and ordered the delivery of certain agricultural products. By usual business practices, payment was demanded upon delivery. On February 10, 1997, SARASOTA GROWERS delivered agricultural products to GULF BREEZE. The invoiced value of the agricultural products delivered to GULF BREEZE was $2,255.00.

5. On February 12, 1997, SARASOTA GROWERS delivered agricultural products valued at $302.50 to GULF BREEZE.

6. On March 7, 1997, SARASOTA GROWERS delivered agricultural products valued at $18.00 to GULF BREEZE

7. GULF BREEZE did not pay for the agricultural products at the time of delivery by SARASOTA GROWERS.

8. At each of these deliveries, SARASOTA GROWERS was informed by an employee of GULF BREEZE that the manager David Joy, was not present, but that payment by check would be mailed. After the delivery of March 7, 1997, SARASOTA GROWERS ceased making deliveries to GULF BREEZE.

9. After several demands for payment by SARASOTA GROWERS, GULF BREEZE remitted a partial payment of $1,000.00 for the agricultural products delivered by SARASOTA GROWERS.

10. GULF BREEZE failed to properly make payment for agricultural products delivered by SARASOTA GROWERS and is indebted to SARASOTA GROWERS in the amount of $1,575.50.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), and Chapter 604, Florida Statutes.

12. The Department of Agriculture and Consumer Services provided proper notice to Respondent and the Surety as required by Section 604.21(2), Florida Statutes.

13. Respondent and the Surety were provided proper notice of the administrative hearing proceedings as required by Section 604.21(6), and Chapter 120, Florida Statutes.

14. Petitioner has been damaged in the amount of $1,575.50 by the breach of conditions of the bond given by Respondent as a licensed dealer in agricultural products which constitutes a violation of Section 604.21(1), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered directing Respondent TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING, to pay Petitioner SARASOTA GROWERS INCORPORATED

$1,575.50 for agricultural products sold to Respondent, and in the event Respondent fails to make such payment, within fifteen

(15) days of that order, that the Surety be required to pay pursuant to the bond posted.

DONE AND ENTERED this 14th day of November, 1997, in Tallahassee, Leon County, Florida.

RICHARD HIXSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUMCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1997.

COPIES FURNISHED:

Brenda Hyatt, Chief Department of Agriculture

and Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Richard Tritschler, General Counsel Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399

W. R. Walden, President Sarasota Growers, Incorporated 1001 Sinclair Drive

Sarasota, Florida 34240

Toulia Xioutas, Incorporated Gulf Breeze Landscaping

901 MacEwen Drive

Osprey, Florida 34229

Frontier Insurance Company of New York

195 Lake Louise Marie Road

Rock Hill, New York 12775-8000

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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-003843

Orders for Case No: 97-003843