STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SKINNER NURSERIES, INC., )

)

Petitioner, )

)

vs. )

) A & R LANDSCAPING & LIGHTING, ) INC., AND OLD REPUBLIC )

SURETY COMPANY, )

)

Respondents. )

_ )

Case No. 03-3538

RECOMMENDED ORDER

Notice was provided and on November 21, 2003, a formal hearing was held in this case. The authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2003). The hearing was conducted by video- teleconferencing between sites in Jacksonville and Tallahassee, Florida. The hearing was held by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Christopher Diaz, C.P.A.

Skinner Nurseries, Inc.

2970 Hartley Road, Suite 302

Jacksonville, Florida 32257 For Respondents: No appearance

STATEMENT OF THE ISSUE

Is Skinner Nurseries, Inc. (Skinner), entitled to collect

$28,097.10 on account, as a producer of agricultural products

allegedly delivered to A & R Landscaping & Lighting, Inc. (A & R), a dealer in agricultural products?

PRELIMINARY STATEMENT

On July 10, 2002, Skinner, through Donald M. Dumond, C.F.O., made a complaint to the Florida Department of Agriculture and Consumer Services (the Department) in accordance with the law pertaining to transactions between producers and dealers in agricultural products. §§ 604.15 through 604.30, Fla. Stat. (2002).

The complaint by Skinner as producer was made against A & R as a dealer in agricultural products. The complaint amount was $27,938.86. The complaint described deliveries of agricultural products to a person affiliated with A & R, after inspection and in accordance with a telephone conversation.

This complaint was supported by a statement of the account between those parties, copies of related invoices, and a letter demanding payment. On August 12, 2003, the complaint was amended to reflect a claim of $28,097.10, the current amount in controversy.

A & R and Old Republic Surety Company (Old Republic), the surety for A & R, were apprised of the amended complaint together with a copy of the executed complaint, taken to mean the original complaint, with documentary evidence attached. A & R and Old Republic were also provided a copy of the

agricultural bond and license law that has been referenced. These materials were provided by Brenda D. Hyatt, a Bureau Chief within the Department. The notification was given on August 19, 2003.

On August 22, 2003, Michael A. Jankowski, Senior Vice President, Claims for Old Republic, responded to Ms. Hyatt noting receipt of the claim made by Skinner and reserving rights available to Old Republic in its defense of the action.

On September 8, 2003, A & R faxed a request to the Department asking for an extension of time to file a response to the amended complaint. On September 9, 2003, that request was granted allowing A & R until September 16, 2003, to offer its response. On September 16, 2003, A & R faxed its answer to the amended complaint indicating that it was not certain of the $28,097.10 claim by Skinner. Given this answer the Department, through Ms. Hyatt, forwarded the case to the Director and Chief Judge of the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a hearing in accordance with Chapter 120.57, Florida Statutes. The transmittal of the case was made on September 23, 2003.

On October 24, 2003, Stephen F. Dean, Administrative Law Judge, noticed the case for hearing by video-teleconferencing

to be held November 21, 2003. The case was reassigned and the hearing conducted by the undersigned.

Prior to hearing, correspondence was filed by Rita J. Robinson, President of A & R, suggesting that the case had been resolved between her company and Skinner. Alice Hunt, Credit Manager for Skinner, filed correspondence indicating that a resolution had not been reached between the parties. This was followed by some indication from Ms. Hunt that Andy Robinson, another official with A & R, informed Skinner that A & R had withdrawn from the dispute. No written confirmation was filed from A & R confirming the abandonment of the defense of the action. Consequently, when the hearing commenced, Skinner, in the person of Chris Diaz, Controller and representative for Skinner, elected to proceed with the case, even in the absence of A & R and Old Republic. Skinner, through its representative, had been given the opportunity to proceed with the case before the undersigned or have the case returned to the Department for disposition without hearing.

The case proceeded in the absence of a representative for

A & R and Old Republic, the undersigned being satisfied that those parties had been duly noticed of the hearing. Notice of the hearing had been provided the parties by ordinary mail.

The mail was not returned.

Chris Diaz, Controller for Skinner, was recognized as a qualified representative following inquiry at the commencement of the hearing. Fla. Admin. Code R. 28-106.106.

Skinner presented Alice Hunt, Credit Manager, as its witness. Petitioner's Composite Exhibit numbered 1 constituted of a statement of the account no. 3008 maintained by Skinner in relation to A & R and various invoices pertaining to the account was admitted as evidence.

On November 25, 2003, a hearing transcript was filed.

No party submitted proposed findings of fact and orders.

§ 120.57(1)(b), Fla. Stat. (2003).

FINDINGS OF FACT

1. From the pleadings it is found that Skinner is a producer of agricultural products and A & R is a dealer in agricultural products in Florida. Old Republic is the surety for the bond to secure A & R's performance consistent with its activities as a dealer. §§ 604.15 through 604.34 Fla. Stat. (2002).

2. Skinner has a business address of 2970 Hartley Road, Jacksonville, Florida 32257. The A & R business address is 739 Long Lake Drive, Oviedo, Florida 32765. The Old Republic business address is 445 South Moorland Road, Brookfield, Wisconsin 53005.

3. On July 31, 2001, A & R applied for a line of credit with Skinner for the provision of plants, shrubs, and trees in their respective capacities as a dealer in agricultural products and a producer of agricultural products. That application was granted and the entities commenced business. This case involves claims by Skinner for agricultural products delivered to A & R that have not been paid for.

4. Within Composite Exhibit 1 by Skinner is a statement of the amount owed by A & R on account no. 3008, a number assigned by Skinner. The account statement depicts transaction dates, invoice numbers, and job descriptions in relation to the charges. In addition, Composite Exhibit 1 by Skinner contains the various invoices in support of the claim. The statement date for account no. 3008 was prepared on July 8, 2003, to support the complaint in this case. But it was, and continues to be, an accurate portrayal of the amount owed by A & R to Skinner for agricultural products provided. The matters set forth in the July 8, 2003, statement of account no. 3008 that accompanies the complaint were in relevant part the same as those in a billing statement that had been mailed to A & R on July 2, 2003, that A & R has not paid.

5. The statement of account no. 3008 for purposes of the complaint excludes certain items from the claim. Among the exclusions are charges that date from December 2002 through

   January 9, 2003. Those charges were not promoted in the complaint based upon their untimeliness. The dates about which claims are made end on February 26, 2003. In addition, certain charges for what are described as hard goods, mulch, and freight were not claimed. Reference to hard goods refers to items to stake trees sold, also referred to as tree guy kits. Finally, no interest is claimed on the account.

6. Within the July 8, 2003, statement of account no.

   
   

   3008 an asterisk by invoice numbers indicates that the charges were solely for the provision of mulch. Therefore, these invoices are not included in Skinner's Composite Exhibit numbered 1, as is the case where invoices are associated with the period before January 13, 2003, and after February 26, 2003.

7. At hearing Skinner established without contradiction that, with the exclusions noted, it supplied the plants, shrubs, and trees to A & R and has not been paid $28,097.10 on account no. 3008.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2003).

9. Skinner, as the complainant, is charged with the duty

   to prove the affirmative. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1stDCA 1977).

   It must prove by a preponderance of the evidence that the agricultural products, plants, shrubs, and trees were delivered to A & R and not paid for. § 120.57(1)(j), Fla. Stat. (2003)

10. This case is considered in accordance with the provisions pertaining to dealers in agricultural products set forth in Sections 604.15 through 604.34, Florida Statutes (2002).

    
    

11. A & R is a "dealer in agricultural products" as defined at Section 604.15(1), Florida Statutes. Skinner is a "producer" of "agricultural products" as defined in Section 604.15(5), Florida Statutes.

12. The nature of the "agricultural products" involved in this case are nursery products as defined at Section 604.15(3), Florida Statutes.

13. Based upon the answer to the amended complaint, it is assumed that A & R has been issued a license by the Department entitling it to conduct business as a dealer in agricultural products. Upon the facts, it is concluded that A & R was dealing in agricultural products provided by Skinner

    as producer. § 604.19, Fla. Stat. That activity was in accordance with a bond provided by Old Republic. § 604.20, Fla. Stat.

14. The period of time during which Skinner has sought recovery for provision of the agricultural products to A & R is within the time line contemplated by Section 604.21(10), Florida Statutes.

15. Following the filing of Skinner's complaint with the Department, appropriate notice was provided to A & R and Old Republic. § 604.21(2), Fla. Stat.

16. Following the answer of A & R to the amended complaint, the case was forwarded to the Division of Administrative Hearings for a hearing pursuant to Chapter 120, Florida Statutes. This arrangement contemplated the entry of the recommended order, to be followed by the final order of the Department. § 604.21(6), Fla. Stat.

17. Skinner has proven the amount of its amended complaint, $28,097.10, due and owing from A & R for the agricultural products that have been discussed.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered finding that A & R owes Skinner $28,097.10.

DONE AND ENTERED this 18th day of December, 2003, in Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

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 18th day of December, 2003.

COPIES FURNISHED:

Christopher Diaz, C.P.A. Skinner Nurseries, Inc.

2970 Hartley Road, Suite 302

Jacksonville, Florida 32257

Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture

and Consumer Services

407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800

Michael A. Jankowski

Old Republic Surety Company Post Office Box 1635 Milwaukee, Wisconsin 53201

Rita J. Robinson, President

A & R Landscaping & Lighting, Inc. 739 Long Lake Drive

Oviedo, Florida 32765

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: 03-003538

Orders for Case No: 03-003538