STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VILA AND SON NURSERY CORP., )

)

Petitioner, )

)

vs. )

) VILA AND SON LANDSCAPING CORP. ) AND WESTFIELD INSURANCE )

COMPANY, AS SURETY, )

)

Respondents. )

Case No. 11-3995

)

RECOMMENDED ORDER OF DISMISSAL

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on

September 14, 2011, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: No appearance

For Respondent Vila and Son Landscaping Corp.:

No appearance1

For Respondent Westfield Insurance Company:

Robert E Morris, Esquire Morris Law Firm

245 East Washington Street Monticello, Florida 32344

David A. Kotnik, Esquire Westfield Insurance Company One Park Circle

Post Office Box 5001 Westfield Center, Ohio 44251

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent Vila and Son Landscaping Corp. owes Petitioner a sum of money for shipments of plants and trees.

PRELIMINARY STATEMENT

On July 6, 2011, Petitioner Vila and Son Nursery Corp. filed a claim with the Department of Agriculture and Consumer Services (the "Department") in which it alleged that Respondent Vila and Son Landscaping Corp., as purchaser, had failed to pay for plants and trees as agreed. Respondent Westfield Insurance Company was named as the purchaser's surety. By letter dated August 5, 2011, the Department forwarded the matter to the Division of Administrative Hearings.

The final hearing took place on September 14, 2011, as scheduled. Petitioner failed to appear, despite having been duly notified of the proceeding.

FINDINGS OF FACT

Because no evidence was presented at the hearing, no finding of fact can be made.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.

   
   

2. Petitioner Vila and Son Nursery Corp. bore the burden of proving the allegations in its complaint against Vila and Son Landscaping Corp. by a preponderance of the evidence. See Dep't of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981); Florida Dep't of HRS v. Career Serv. Comm'n, 289 So. 2d 412, 415 (Fla. 4th DCA 1974); § 120.57(1)(j), Fla. Stat.

3. Petitioner failed to carry its burden.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing this proceeding for the failure of Petitioner to establish the allegations of the complaint.

DONE AND ENTERED this 15th day of September, 2011, in Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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 15th day of September, 2011.

ENDNOTE

1/ Jeremy R. Firth, Esquire, has represented this Respondent in other administrative proceedings and, apparently because of that, was furnished notice of the final hearing in this case.

Mr. Firth never made an appearance on behalf of Vila and Son Landscaping Corp. in this case, however, and thus——after clarifying that he was not an attorney of record——did not participate further in the final hearing.

COPIES FURNISHED:

Maria P. Vila

Vila and Son Nursery Corporation 20451 Southwest 216th Street Miami, Florida 33170

Alan L. Goldberg

Vila and Son Landscaping Corporation 20451 Southwest 216th Street

Miami, Florida 33170

Christopher E Green, Esquire Department of Agriculture and

Consumer Services

Office of Citrus License and Bond Mayo Building, M-38

Tallahassee, Florida 32399

David A. Kotnik, Esquire Westfield Insurance Company One Park Circle

Post Office Box 5001 Westfield Center, Ohio 44251

Robert E Morris, Esquire Morris Law Firm

245 East Washington Street Monticello, Florida 32344

Honorable Adam H. Putnam Commissioner of Agriculture and

Consumer Services

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

Lorena A. Holley, General Counsel Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520 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: 11-003995

Orders for Case No: 11-003995