STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGERS SUN TREE NURSERY, INC., )

)

Petitioner, )

)

vs. )

)

TOULLA XIOTAS, INC., d/b/a )

GULF BREEZE LANDSCAPING, )

)

Respondent, ) Case No. 97-4246A

)

and )

) FRONTIER INSURANCE COMPANY OF ) NEW YORK, )

)

Co-Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Sarasota, Florida, on December 11, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert S. Angers, II, pro se

Angers Sun Tree Nursery, Inc. 900 Sinclair Drive

Sarasota, Florida 34240

For Respondent: Was not present and was not

represented by counsel

For Co-Respondent: Was not present and was not

represented by counsel. STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent, Toulla Xiotas, Inc., d/b/a Gulf Breeze Landscaping,

was indebted to Petitioner for Florida-grown agricultural products as alleged in the Complaint filed herein.

PRELIMINARY MATTERS

By Complaint dated June 17, 1997, Petitioner, Angers Sun Tree Nursery, Inc., claimed the sum of $390.00 from Respondent, Gulf Breeze Landscaping, for Florida-grown decorative plants purchased by Respondent on January 20 and 22, and April 1, 1997, for which payment had not been received. In its Answer, Respondent asserted it had been forced to close its business and that its attorney was in the process of working out an accommodation with all vendors. Respondent further indicated its demand for hearing if such arrangement was not satisfactory with Petitioner. This hearing ensued.

Petitioner appeared at the time, date and location of the hearing. Neither Respondent or its bonding agent, Co-Respondent, appeared even though both had been timely advised as to the date, time and location of the hearing by U.S. Mail on October 2, 1997, and neither notice was returned undelivered. The Administrative Law Judge postponed the commencement of the hearing for more than one-half hour past the scheduled hearing commencement time in the event that either Respondent or Co-Respondent had been inadvertently delayed. Thereafter, Petitioner testified in his own behalf and introduced Petitioner’s Composite Exhibits 1. No evidence was submitted on behalf of Respondent or Co-Respondent.

No transcript was provided, and there were no post-hearing

submittals by any party.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Petitioner was a grower of ornamental and decorative plants in Florida for sale to, among others, landscapers and wholesalers.

2. For some time prior to the period in issue, Respondent, Toulla Xiotas, Inc., d/b/a Gulf Breeze Landscaping, has been engaged in the landscaping business in the Sarasota County area and has made numerous purchases of plants from Petitioner.

3. On December 24, 1996, Respondent paid $7,088.74 to Petitioner to cover the cost of purchases made between July 24 and August 30, 1996, plus interest. Thereafter, on January 20, 1997, Respondent purchased eight number ten wax myrtle trees from Petitioner at $30.00 a piece for a total of $240.00. On

   January 22, 1997, Respondent purchased one number thirty E.P. holly from Petitioner for $75.00, and on April 1, 1997, purchased one number thirty ligustrum for $75.00. The total of the three purchases was $390.00. Notwithstanding that Petitioner submitted invoices for those purchases on March 31, May 29, July 31, and August 29, 1997, none of the amount due has been paid.

4. Respondent did not, in any way, contest the obligation. Even in its Answer to the Complaint, it did not deny the obligation but merely indicated its attempt to work out some accommodation with its creditors. Respondent’s Answer also reflected that its surety was Frontier Insurance Company of New York.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

6. Section 604.21, Florida Statutes, provides:

   
   

   1. Any person claiming himself to be damaged by any breach of the conditions of a bond or agreement given by a licensed dealer in agricultural products . . . may enter a complaint therefor against the dealer and against the surety, if any, to the department, which complaint shall be a written statement of the facts concerning the complaint.

      and

      
      

      (6) Any party whose material interest is affected by a proceeding pursuant to this section shall be granted a hearing [pursuant to Chapter 120] upon request.

      
      

7. In the instant case, the evidence presented established clearly that Respondent purchased Florida-grown agricultural products from the Petitioner and thereafter failed, without a legitimate reason, to pay for them. Neither in its answer to the Complaint, nor at hearing, did Respondent deny its obligation to Petitioner in the amount set out. It is, therefore, indebted to Petitioner in the amount of $390.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture enter a Final Order in this matter directing Respondent, Toulla Xiotas, Inc., d/b/a Gulf Breeze Landscaping to pay Petitioner, Angers Sun

Tree Nursery, Inc., the sum of $390.00. In the event this sum is not paid by the Respondent, the Department should apply the bond posted by Frontier Insurance company of New York in the amount due and payable.

DONE AND ENTERED this 11th day of December, 1997, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

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) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1997.

COPIES FURNISHED:

Robert S. Angers, II

Angers Sun Tree Nursery, Inc. 900 Sinclair Drive

Sarasota, Florida 34240

Toulla Xiotas, Inc.,

d/b/a 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

Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10

Tallahassee, Florida 32399-0810

Richard Tritschler

General Counsel Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing and bond Department of Agriculture

and Consumer Services Mayo Building, Suite 508

Tallahassee, Florida 32399-0800

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: 97-004246

Orders for Case No: 97-004246