STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE JEM FARMS, INC., )

)

Petitioner, )

)

vs. ) Case No. 00-0014A

) ALLEN D. WEEKLY, d/b/a ALLEN’S ) SOD SERVICE, and FIDELITY & ) DEPOSIT COMPANY OF MARYLAND, )

)

Respondents. )

)

RECOMMENDED ORDER

Don W. Davis, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in this case on March 29, 2000, in Tavares, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Michael A. Croak, Esquire

14229 U.S. Highway 441

Tavares, Florida 32778

For Respondent Allen’s Sod Service:

Rena Weekly, Qualified Representative Allen’s Sod Service

8148 Southeast 147th Place Summerfield, Florida 34491

For Respondent Fidelity & Deposit Company of Maryland:

No Appearance STATEMENT OF THE ISSUE

The issue is whether Respondent Allen’s Sod Service owes Petitioner Lake Jem Farms, Inc., money for grass sod.

PRELIMINARY STATEMENT

By Complaint dated November 25, 1999, Petitioner alleged that Respondent Allen’s Sod Service owed it $6,244.52 for grass sod that Petitioner sold Respondent.

By Answer dated December 29, 1999, Respondent Allen’s Sod Service denied the claim and demanded a formal hearing.

Respondent Fidelity & Deposit Company of Maryland made no appearance and was not represented at the final hearing.

At the hearing, Petitioner called one witness and presented two exhibits. Respondent called one witness and offered one exhibit into evidence.

The parties did not order a transcript. A Proposed Recommended Order submitted by Petitioner has been considered in the formulation of this Recommended Order. A letter submitted by counsel, presumably obtained by Respondent subsequent to the final hearing, is dated April 6, 2000, and has been reviewed in conjunction with the preparation of this recommended order.

FINDINGS OF FACT

1. Before the transaction of business which is the subject of this proceeding, Petitioner’s predecessor sold lawn sod to Respondent over a period of time. Petitioner and Respondent verbally agreed that payment of Respondent’s indebtedness to Petitioner would be forthcoming upon Respondent’s retirement of indebtedness to Petitioner’s predecessor. Despite this condition of payment to Petitioner’s predecessor, Respondent nevertheless

   made payments to Petitioner for grass sod, thereby effectively waiving the condition with regard to amounts presently owed to Petitioner.

2. Respondent made 24 purchases of sod from Petitioner during the months of August and September 1999, and paid Petitioner for 18 of the sod purchases. Six purchases remained unpaid for a total of $6,244.52 owed to Petitioner by Respondent.

3. Respondent’s representative claimed at final hearing that certain sod purchases were defective, but admitted the six sod purchases for which money was still owed to Petitioner, were not among the defective purchases. Other than the allegations of other defective sod purchases, Respondent’s representative presented no direct, competent evidence of the existence of the defective products.

4. Additionally, the evidence establishes that Respondent’s representative signed for each individual load of sod, certifying that the sod was acceptable. Thereafter each sod purchase entered into possession of Respondent’s employee for transport to the work site.

   CONCLUSIONS OF LAW

   
   

5. 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.)

6. Petitioner proved that Respondent owes it $6,244.52 for grass sod sold to Respondent.

RECOMMENDATION

It is

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent owes Petitioner the sum of $6,244.52, which, if unpaid, is due from Respondent Fidelity & Deposit Company Of Maryland under the bond.

DONE AND ENTERED this 20th day of April, 2000, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2000.

COPIES FURNISHED:

Michael A. Croak, Esquire 14229 U.S. Highway 441

Tavares, Florida 32778

Rena Weekly, Qualified Representative Allen’s Sod Service

8148 Southeast 147th Place Summerfield, Florida 34491

Richard Tritschler, General Counsel Department of Agriculture and

Consumer Services

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

Brenda Hyatt, Chief

Bureau of License and Bond Department of Agriculture

and Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

Honorable Bob Crawford, Commissioner Department of Agriculture and

Consumer Services

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

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: 00-000014

Orders for Case No: 00-000014