M. PAYNE AND SON, INC., )
)
Petitioner, )
)
vs. )
) GARRISON IRRIGATION, INC., AND ) CONTINENTAL CASUALTY COMPANY, ) AS SURETY, )
)
Respondents. )
Case No. 04-3191
)
RECOMMENDED ORDER
Pursuant to notice and in accordance with Section 120.569 and Subsection 120.57(1), Florida Statutes (2004), this cause came on for final hearing before Fred L. Buckine, the designated Administrative Law Judge of the Division of Administrative Hearings, on October 27, 2004, in Sebring, Florida.
APPEARANCES
For Petitioner: Jennifer Payne, pro se
C. M. Payne & Son, Inc. 9404 Payne Road Sebring, Florida 33875
For Respondent Garrison Irrigation, Inc.:
No Appearance
For Respondent Continental Casualty Company:
No Appearance
STATEMENT OF THE ISSUES
Whether Respondent, Garrison Irrigation, Inc., failed to pay amounts owing to Petitioner resulting from a verbal contract for four pallets of Bahia sod as set forth in the complaint dated July 20, 2004, and, if so, what amount Petitioner is entitled to recover.
PRELIMINARY STATEMENT
On July 20, 2004, Petitioner, C.M. Payne and Son, Inc., filed a complaint with the Department of Agriculture and Consumer Services (Department), alleging that Respondent, Garrison Irrigation, Inc., failed and refused to pay four invoices, totaling $1,540.80,1 for four pallets of Bahia sod, after repeated calls and attempts were made to collect those four outstanding invoices.
On August 12, 2004, the Department noticed the Commissioner of Agriculture under the provisions of the Agriculture Bond and License Law, Sections 604.15 through 604.34, Florida Statutes (2004), of Petitioner's complaint.
On August 24, 2004, Respondent, Joe Garrison, president/owner of Garrison Irrigation, Inc., filed a response to the compliant filed by Petitioner.
On September 9, 2004, the complaint was referred by the Department to the Division of Administrative Hearings where it was assigned to the undersigned Administrative Law Judge and set
for hearing. On that same date, the Initial Order was entered and forwarded to all parties of interest.
On September 21, 2004, Respondent, Continental Casualty Company, filed a letter declining to file an answer or move in any other manner on this matter at this time.
On September 23, 2004, a Notice of Hearing, scheduling the final hearing for October 27, 2004, in Sebring, Florida, and an Order of Pre-hearing Instructions were entered.
At the formal hearing on October 27, 2004, no one appeared on behalf of Respondents, Garrison Irrigation, Inc., and Continental Casualty Company.
The undersigned called his secretary who telephoned Respondent, Joseph L. Garrison, and was informed that he had forgotten the hearing and the date, was out-of-pocket, and would not be attending. Jennifer Payne, wife of John Payne, president of C.M. Payne and Son, Inc., appeared on his behalf and gave testimony.
The hearing was recorded and transcribed. Petitioner was advised of the option and the time frame in which to file a proposed recommended order and declined to do so. The Transcript of the hearing was filed on November 5, 2004.
Neither party filed a proposed recommended order.
FINDINGS OF FACT
Based upon observation of the witness and her demeanor while testifying, the documents received into evidence, and the entire record of this proceeding, the following relevant and material findings of fact are determined:
At all times material to this proceeding, Petitioner,
C.M. Payne and Son, Inc., was a producer of agricultural products as that term is defined in Subsection 604.15(5), Florida Statutes (2004).
At all times material to this proceeding, Respondent, Garrison Irrigation, Inc. (Garrison), was licensed as a dealer in agriculture products as that term is defined in Subsection 604.15(1), Florida Statutes (2004). Respondent was licensed under number 13653, supported by Bond No. 929237754 in the amount of $10,000; written by Respondent, Continental Casualty Company, as Surety (Continental); Inception Date: December 4, 2003; Expiration Date: December 3, 2004; and Execution Date: December 4, 2003.
At all times material, Continental is the surety which issued Garrison a surety bond.
On January 23, 2004, Petitioner sold 16 pallets of Bahia sod to Garrison and, on Invoice 20027, billed Garrison a total of $599.20 for the 16 pallets of sod.
On January 26, 2004, Petitioner sold 32 pallets of Bahia sod to Garrison and, on Invoice 20033, billed Garrison a total of $1,198.40 for the 32 pallets of sod.
On January 27, 2004, Petitioner sold 16 pallets of Bahia sod to Garrison and, on Invoice 20039, billed Garrison a total of $599.20 for the 16 pallets of sod.
On February 2, 2004, Petitioner sold 16 pallets of Bahia sod to Garrison and, on Invoice 20044, billed Garrison a total of $599.20 for the 16 pallets of sod.
The terms of the sale between Petitioner and Garrison were for net payment for products sold within 30 days after the invoice date.
Garrison did not appear at the hearing to contest or otherwise refute the charges alleged in Petitioner's complaint.
Garrison is indebted to Petitioner in the amount of
$2,996.00 for Bahia sod purchases from Petitioner on
January 23, 26, and 27, 2004, and February 2, 2004. Garrison has failed to pay Petitioner for the sod purchases.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Subsection 120.57(1), Florida Statutes (2004).
The authority of the Department is derived from Chapter 604, Florida Statutes (2004).
Petitioner is an agricultural producer within the meaning of Subsection 604.15(5), Florida Statutes (2004).
Garrison is an agricultural dealer as that term is defined in Subsection 604.15(1), Florida Statutes (2004).
During all times material, Continental issued a bond to Garrison for agricultural products pursuant to
Section 604.20, Florida Statutes (2004).
Garrison is indebted to Petitioner in the amount of
