The Issue The issue in this case is whether Petitioners sold nursery plant materials to Respondent U.S. Lawns of Orlando, Inc. for which the latter did not pay.
Findings Of Fact On May 24, 1990, Jon's Nursery, Inc. sold U.S. Lawns of Orlando, Inc. 460 Juniper plants, for $731.40 including tax. The plants were picked up by U.S. Lawns employee Mark Rosetta. U.S. Lawns of Orlando, Inc. does not dispute the validity of the claim arising out of the May 24 sale. However, U.S. Lawns has never paid for these plant materials. On June 6, 1990, Jon's Nursery, Inc. sold U.S. Lawns of Orlando, Inc. 40 Juniper plants and 50 grass plants for $166.95 including tax. These plants were picked up by Jeffrey Miller, who was an employee of U.S. Lawns. U.S. Lawns disputes the validity of the June 6 sale. However, the owner of U.S. Lawns, Glen Jaffee, never responded to numerous telephone calls from Pen Smith of Jon's Nursery, Inc. concerning the unpaid invoices. Nor did anyone respond to a certified demand letter that Mr. Smith mailed to U.S. Lawns on August 29, 1990, or the numerous monthly statements reflecting the unpaid balances. An officer and employee of U.S. Lawns of Orlando, Inc., Pat Oyler, had ordered the plant materials by telephone from Jon's Nursery, Inc. Mr. Oyler had previously ordered plant materials on behalf of U.S. Lawns from Jon's Nursery, which had always been paid. On two occasions subsequent to the sales in question, Mr. Oyler ordered plant materials from Jon's Nursery, Inc. on behalf of U.S. Lawns, but paid for them with his personal check, and Mr. Smith told him that he would need, in such cases, to order the plants in his name. On May 31, 1990, Concepts in Greenery, Inc. sold U.S. Lawns ten 15-gallon crepe myrtles for $318 including tax. These items were picked up by Jeffrey Miller driving a U.S. Lawns truck. These plant materials had been ordered by Mr. Oyler of U.S. Lawns. Concepts in Greenery, Inc. had also previously done business with U.S. Lawns and been paid. In a sale which had taken place on March 25, 1990, Mr Oyler had ordered about $400 worth of plant materials on behalf of U.S. Lawns. Additionally, in its application for credit with Concepts in Greenery, Inc. dated April 11, 1988, Mr. Jaffee, as president of U.S. Lawns of Orlando, Inc., had certified that Mr. Oyler was vice president of U.S. Lawns of Orlando, Inc. Repeated telephone calls and monthly statements from Concepts in Greenery, Inc. to U.S. Lawns of Orlando, Inc., as well as a certified letter dated September 19, 1990, to Mr. Jaffee, were unsuccessful in obtaining any response whatsoever from the latter company. Spring Hill Nursery, Inc. made several sales of a variety of plant materials to U S. Lawns of Orlando, Inc. Including tax, these sales were as follows: March 13, 1990, for $131.18; March 26, 1990, for $544.05; April 5, 1990, for $12.24; April 6, 1990, for $90.10; April 17, 1990, for $593.60; April 18, 1990, for $55.65; and April 27, 1990, for $92.75. An eighth invoice dated June 4, 1990, for $581.15 has been excluded because it bears the names of Oyler Construction Company, Inc., Bentley Green, and Pat Oyler as the persons invoiced and nowhere mentions U.S. Lawns. The total of the seven sales to U.S. Lawns is $1519.57. Spring Hill Nursery, Inc. repeatedly tried to contact Mr. Jaffee and U.S. Lawns, including by letter dated August 27, 1990, but never received any response to its demand for payment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring U.S. Lawns of Orlando, Inc. to pay the above-indicated sums to the respective parties. DONE AND ENTERED this 9th day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1991. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler General Counsel Department of Agriculture 515 Mayo Building Tallahassee, FL 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Pen Smith, Sales Manager Jon's Nursery, Inc. 24546 Nursery Way Eustis, FL 32726 Charles Brown, Nursery Manager Concepts in Greenery, Inc. 16366 Old Cheney Highway Orlando, FL 32833 David Rubright, President Spring Hill Nursery, Inc. 1921 Hill Drive Apopka, FL 32703 Glen Jaffee 612 Bryn Mawr Orlando, FL 32804 Bankers Insurance Company 10051 5th Street North St. Petersburg, FL 33702
The Issue The issue is whether Respondent, Akers Holdings, LLC, and its surety, Fidelity and Deposit Company of Maryland, are liable for funds due to Petitioner from the sale of agricultural products.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner operates a nursery supply company that produces trees, plants, and other landscaping supplies at a location in Bunnell, Florida. Respondent is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. At the time of the transactions in question, Respondent was a landscape distribution company and a licensed dealer in agricultural products supported by a surety bond provided by Fidelity and Deposit Company of Maryland. This matter arose over an Agent Complaint filed by Petitioner on March 23, 2005, in which it alleged that Respondent owed $136,942.49, based upon numerous invoices for nursery goods delivered to various job sites where Respondent was providing landscaping services. Respondent Akers Holdings, LLC, by its agent or employee, R. Dean Akers, signed a Promissory Note on March 23, 2005, in the amount of $137,445.47 plus ten percent simple interest per annum. Under the note, Respondent agreed to repay its outstanding debt to Petitioner at the rate of $12,083.64 per month, commencing March 15, 2005, until paid in full. Respondent made payments under the note as follows: Date of Payment Amount Paid Check No. 3/15/2005 $12,083.64 13536 4/15/2005 12,097.81 1360 5/13/2005 12,090.51 13657 6/14/2005 12,129.37 1372 7/29/2005 12,103.41 13782 The payment dated 7/29/2005 was received by Petitioner on August 8, 2005. No subsequent payments were made by Respondent, Akers Holdings, LLC, after that date. At the time of hearing, based upon the evidence presented by Petitioner, the amount due to Petitioner under the Promissory Note was $81,655.81, and the amount due to Petitioner on open account was $30,734.58. Respondent, Akers Holdings, LLC, offered no excuse for its nonpayment of either the Promissory Note or the open account with Petitioner. Accordingly, Respondent Akers Holdings, LLC, or its surety, Fidelity and Deposit Company of Maryland, owe Petitioner $81,655.81 on the Promissory Note and $30,734.58 on open account, for a total amount owed of $112,390.39.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Agriculture and Consumer Services enter a Final Order requiring Respondent, or its surety, to pay Petitioner $112,390.39 for unpaid invoices. DONE AND ENTERED this 26th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 26th day of January, 2006. COPIES FURNISHED: Kathy Alves Fidelity & Deposit Company of Maryland Post Office Box 87 Baltimore, Maryland 21203 R. Dean Akers Akers Holdings, LLC 5006 20th Avenue, South Tampa, Florida 33619 Donald M. DuMond Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Christopher E. Green, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Division of Marketing 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Department of Agriculture and Consumer Services Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Does Respondent Horizon Produce Sales, Inc. (Horizon) owe Petitioner Richard Sapp, d/b/a Sapp Farms (Sapp Farms) $5,484.50 as alleged in the Amended Complaint filed herein by Sapp Farms?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. At times pertinent to this proceeding, Sapp Farms was a "producer" as defined in Section 604.15(5), Florida Statutes, of agricultural products in the State of Florida. Tomatoes come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. Horizon is a Florida Corporation, owned entirely by Donald E. Hinton, and located in Sydney, Florida. At times pertinent to this proceeding, Horizon was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. Horizon was issued License Number 10584, supported by Bond Number 58 84 19 in the amount of $16,000 written by Gulf Life Insurance Company, as Surety, with an inception date of September 26, 1998, and an expiration date of September 25, 1999. By Invoice numbered 1262, Sapp Farms’ Exhibit numbered 6, dated June 18, 1999, with a shipping date of June 16, 1999, Sapp Farms sold and delivered to Horizon several varieties and sizes of tomatoes in 25-pound cartons at an agreed-upon price of $9.00 per 25-pound carton for 267 cartons and $8.00 per 25-pound carton for 104 cartons for a total amount of $3,235.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. By check dated July 3, 1999, Horizon paid Sapp Farms $1,415.00 on these tomatoes leaving a balance owing of $1,820.00. By Invoice numbered 1263, Sapp Farms’ Exhibit numbered 10, dated June 22, 1999, with a shipping date of June 22, 1999, Sapp Farms sold and delivered to Horizon 122 25-pound cartons of extra large pink tomatoes at $8.00 per 25-pound carton, 51 25- pound cartons of large pink tomatoes at $8.00 per 25-pound carton, and 296 25-pound cartons of 125-150 count Roma tomatoes at $8.00 per 25-pound carton for a total invoiced price of $3,752.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. Sapp Farms has not been paid for these tomatoes. By Invoice numbered 1272, Sapp Farms’ Exhibit numbered 15, dated June 24, 1999, with a shipping date of June 23, 1999, Sapp Farms sold and delivered to Horizon 70 25-pound cartons of extra large tomatoes at an agreed upon price of $8.50 per 25- pound carton for a total price of $595.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. Sapp Farms has not been paid for those tomatoes. Sapp Farms agrees that it owes Horizon $682.50 in freight charges. See Sapp Farms’ Exhibit numbered 12 and the Amended Complaint filed by Sapp Farms. Horizon contends that it did not agree to purchase the tomatoes at an agreed upon price per 25-pound carton but agreed to "work" the tomatoes with Horizon’s customers and to pay Sapp Farms based on the price received for the tomatoes from its customers less any freight charges, etc. Additionally, Horizon contends that it made contact or attempted to make contact with Sapp Farms regarding each of the loads and was advised, except possibly on one load, by either Mark Davis or Richard Sapp that a federal inspection was not necessary and to "work" the tomatoes as best Horizon could. The more credible evidence is that neither Mark Davis nor Richard Sapp was timely advised concerning the alleged condition of the tomatoes. Furthermore, there is insufficient evidence to show that the condition of the tomatoes when delivered to Horizon’s customers had deteriorated to a point that resulted in rejection by Horizon’s customers. The more credible evidence shows that neither Mark Davis nor Richard Sapp advised Horizon that there was no need for a federal inspection or that Horizon could "work" the tomatoes with Horizon’s customers. The more credible evidence is that Horizon agreed to purchase Sapp Farms’ tomatoes at an agreed-upon price and that upon those tomatoes being loaded on Horizon’s truck, Horizon was responsible to Sapp Farms for the agreed-upon price. Sapp Farms timely filed its Amended Complaint in accordance with Section 604.21(1), Florida Statutes, and Horizon owes Sapp Farms for tomatoes purchased from Sapp Farms on Invoice numbered 1262, 1263, and 1272 less the partial payment on Invoice numbered 1262 of $1,415 and freight charges of $682.50 for total amount due of $5,484.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order granting Sapp Farms relief by ordering Horizon Produce Sales, Inc. to pay Sapp Farms the sum of $5,484.50. DONE AND ENTERED this 24th day of May, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2000. COPIES FURNISHED: Honorable Bob Crawford, Commissioner Department of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Sapp Sapp Farms 4720 Gallagher Road Plant City, Florida 33565 Donald E. Hinton, Qualified Representative President, Horizon Produce Sales, Inc. 1839 Dover Road, North Post Office Box 70 Sydney, Florida 33587 Michael E. Riley, Esquire Rumberger, Kirk and Caldwell A Professional Association Post Office Box 1050 Tallahassee, Florida 32302 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
The Issue The issue is whether Respondent, Greenblades of Central Florida, Inc., and its surety, Western Surety Company, are liable for funds due to Petitioner from the sale of agricultural products.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner operates a nursery supply company that produces trees, plants, and other landscaping supplies at a location in Bunnell, Florida. Respondent is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. At the time of the transactions in question, Respondent was a licensed dealer in agricultural products supported by a surety bond provided by Western Surety Company. This matter arose over a Producer Complaint filed by Petitioner on June 24, 2005, in which it alleged that Respondent owed $20,512.97, based upon five invoices for nursery goods delivered to various job sites where Respondent was providing landscaping services. The five invoices set forth in the original Producer Complaint are as follows: Date of Sale Invoice # Amount Dec. 28, 2004 64679 $2,884.72 Jan. 11, 2005 64828 3,878.75 Jan. 11, 2005 64829 1,926.00 Feb. 1, 2005 65229 2,086.50 Feb. 3, 2005 65127 9,737.00 Petitioner later amended its Complaint to withdraw its claims under Invoice Nos. 65229 and 65127, as untimely filed, resulting in an amended amount due of $8,689.47. Respondent filed a Response to the Producer Complaint on August 15, 2005, admitting the amounts due under Invoice Nos. 64679 and 64828, totaling $6,763.47, and denying the amount claimed in Invoice No. 64829, $1,926.00, as never having been filled, resulting in Respondent's using another vendor to fill the order. Respondent admitted the amounts due under Invoice Nos. 64679 and 64828; therefore, no further discussion is necessary for those items, except to note that Delivery Receipt No. 17751, relating to Invoice No. 64828 contains the note "Reject 1 Live Oak." Therefore, the amount of Invoice No. 64828 must be reduced by $214.00 ($200 for the tree and 7 percent Florida Sales Tax). With respect to Invoice No. 64829, however, Petitioner produced at hearing only an unsigned invoice without either a sales order or a receipt for delivery of goods, as was its custom concerning deliveries of nursery goods. Accordingly, Petitioner provided no proof that the order under Invoice No. 64829 was actually delivered to Respondent. Respondent and its surety, Western Surety Company, currently owe Petitioner $2,884.72 under Invoice No. 64679, and $3,664.75 under Invoice No. 64828, for a total amount owed of $6,549.47.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Agriculture and Consumer Services enter a Final Order requiring Respondent, Greenblades of Central Florida, Inc., or its surety, Respondent, Western Surety Company, to pay Petitioner $6,549.47 for unpaid invoices. DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 25th day of January, 2006. COPIES FURNISHED: Christopher E. Green, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Division of Marketing 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Joseph Robbins, Jr. Greenblades of Central Florida, Inc. 11025 Southeast Highway 42 Summerfield, Florida 34491 Tom Snyder Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077 Donald M. DuMond Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Tom Robinson Skinner Nurseries, Inc. 13000 State Road 11 Bunnell, Florida 32110 Honorable Charles H. Bronson Department of Agriculture and Consumer Services Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800
Findings Of Fact On February 23 and April 19, 1985, Respondent purchased woody ornamental plants from Pleasant View Nursery for a total purchase price of $650.50. The only payment on this account made by Respondent was $100 on November 15, 1985, leaving a balance due of $550.50. On February 23 and March 16, 1985, Respondent purchased citrus trees from Hillsborough Wholesale Nursery for a total purchase price of $720.90. The only payment on this account made by Respondent was $150, leaving a balance due of $570.90. Arthur A. Yambor, Respondent's President, is a licensed dealer in agricultural products under the provisions of Sections 604.15 - 604.30, F.S., and is bonded through United States Fidelity and Guaranty Company, Co- Respondent, as required by Section 604.19. Petitioners filed their complaints concerning this matter with the Department of Agriculture within nine months from the date of sale. Payment in full for the sales in question was to have been made within thirty days of the date of each sale. Respondent admits that the sales were made, and that Respondent did receive the agricultural products from Petitioner, for which these claims are made. However, Arthur A. Yambor testified that Respondent has not made full payment on these accounts because he believes the citrus trees purchased from Hillsborough Wholesale Nursery were infected with citrus canker which resulted in these, as well as other trees in his nursery, having to be destroyed. He has refused to make further payment to Petitioners due to the financial loss he sustained as a result of, what he believes to have been, infected trees he received from Hillsborough Wholesale Nursery. However, no proof was offered on behalf of Respondent that, in fact, trees purchased from Hillsborough Wholesale Nursery were infected. While Respondent did receive citrus canker compensation, there is no evidence that the canker resulted from citrus trees purchased from Hillsborough Wholesale Nursery.
Recommendation Based upon the foregoing, it is recommended that the Department of Agriculture enter a Final Order requiring Respondent to make full payment on the remaining indebtedness claimed by Petitioners. DONE and ENTERED this 9th day of May, 1996 in Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1986. COPIES FURNISHED: Douglas A. Holmberg, President Pleasant View Nursery & Hillsborough Wholesale Nursery 1321 N. Valrico Road Valrico, Florida 33594 Paul B. Boswell, Manager 1321 N. Valrico Road Valrico, Florida 33594 Arthur A. Yambor, President Shelton's of Brandon, Inc. 1351 W. Brandon Boulevard Brandon, Florida 33511 United States Fidelity and Guaranty Company Post Office Box 1138 Baltimore, Maryland 21203 Joe Kight, Chief Bureau of License and Bond Room 418, Mayo Building Tallahassee, Florida 32301 Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
The Issue Whether Respondent, Sergmar, Inc., owes Petitioner, Zamia Corporation, d/b/a Landscaper's Choice, $674.07 for the sale of landscaping plants.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner operates a landscape supply company that produces plants, among other landscaping supplies, at a location in Naples, Florida. Respondent Sergmar is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. At the time of the transactions in question, Sergmar was licensed as a dealer in agricultural products supported by a surety bond in the amount of $4,999 provided by the Hartford Fire Insurance Company. Between February 21, 2002, and March 29, 2002, Petitioner sold Sergmar nursery plants and trees produced by Petitioner. As of March 29, 2002, the balance owed Petitioner by Sergmar was $7,498.04. As of April 30, 2002, finance charges had increased the balance to $7,676.01. Sergmar began attempting to pay down the balance in May and June 2002. Sergmar made one valid payment of $500 during this period. However, other Sergmar checks in partial payment of the balance were returned for insufficient funds three times during this period. On June 24, 2002, Petitioner filed a Producer Complaint with the Department, seeking an order that Sergmar be directed to pay an adjusted balance of $6,182.23. Petitioner arrived at the "adjusted balance" by writing off some items and eliminating finance charges from its claim. As of June 24, 2002, Sergmar actually owed Petitioner a total balance of $6,997.17. On or about July 25, 2002, Sergmar filed an Answer admitting the debt. Sergmar's letter stated: "We fully intend to pay for it. We are trying to collect outstanding invoices. We request 60 days to settle [the] balance." By letter dated August 1, 2002, Petitioner notified the Department that it had entered a proposed settlement plan with Sergmar and that it agreed with Sergmar's request to abate the proceeding. On August 2, 2002, the Department placed the case in abeyance to provide the parties an opportunity to settle the issue. By letter dated August 21, 2002, Petitioner notified the Department that it had received no money from Sergmar pursuant to the settlement plan, and that it wished to resume processing of its Producer Complaint. By order dated September 12, 2002, the Department ordered Sergmar to pay Petitioner the amount of $6,182.23 within 15 days of the date the order became final. While Petitioner's claim was pending, service charges continued to accumulate on the principal balance. By August 31, 2002, Sergmar owed Petitioner $7,635.30. On September 6, 2002, before the Department entered its order, Sergmar presented Petitioner with a cashier's check for $7,000. By letter faxed to the Department on September 17, 2002, Petitioner stated that Sergmar had made a partial payment of the balance but that it still owed $635.30 to Petitioner. The letter requested that the Department "continue the complaint for the balance owed." By letter to the Department dated September 24, 2002, Sergmar objected to the request that the claim against its surety bond remain open. Sergmar admitted that it still owed $635.30 to Petitioner, and stated that it intended to pay off that amount over the next two months. However, Sergmar also noted that Petitioner's Producer Complaint requested $6,182.23 and that Sergmar had paid Petitioner $7,000. Sergmar contended that the $7,000 payment more than satisfied the amount requested in the Producer Complaint and that the Department should therefore close the proceeding against Sergmar's surety bond.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter its final order finding that Respondent, Sergmar, Inc. has satisfied the Department's Order, dated September 12, 2002, that it pay $6,182.23 to Zamia Corporation, d/b/a Landscaper's Choice, and that no further action on the Producer Complaint filed by Zamia Corporation is necessary. DONE AND ENTERED this 7th day of February, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 7th day of February, 2003. COPIES FURNISHED: Sergio Birsa, Director Sergmar, Inc. 2881 Santa Barbara Boulevard Naples, Florida 34116 Marian Birsa, Agent Sergmar, Inc. 2881 Santa Barbara Boulevard Naples, Florida 34116 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture 407 South Calhoun Street, Mail Station 38 Mayo Building Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Charles Minor, Registered Agent Hartford Fire Insurance Company Hartford Plaza Hartford, Connecticut 06115 Ronald L. Torp, Jr., President Zamia Corporation 218 Sabal Palm Road Naples, Florida 34114
The Issue Does Respondent Consolidated Services, Inc. (CSI) owe Petitioner Richard Sapp Farms, Inc. (Sapp Farms) $24,677.66 as alleged in the Amended Complaint filed herein by Sapp Farms?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At times pertinent to this proceeding, Sapp Farms was a "producer," as defined in Section 604.15(5), Florida Statutes, of agricultural products in the State of Florida. Squash and eggplant come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. CSI is a Florida Corporation, owned entirely by Robert "Bo" Allen, and located in Pompano Beach, Florida. At times pertinent to this proceeding, CSI was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. CSI was issued License Number 8873 by the Department, which is supported by Bond Number L&P 66186 in the amount of $25,000.00 written by Respondent New York Surety Company, as Surety, with an Inception Date of November 18, 1997, and an Expiration Date of November 17, 1998. Sometime in early April or May 1998, Sapp Farms entered into a verbal contract with CSI, through its agents, to furnish CSI with fresh vegetables during the spring and summer of 1998. From early May 1998 through July 1998, Sapp Farms furnished CSI with eggplant and squash. From June 1, 1998 through August 8, 1998, CSI paid Sapp Farms a total of $51,300.00 for eggplant and squash furnished to CSI. The Complaint was timely filed by Sapp Farms in accordance with Section 604.21(1), Florida Statutes. Sapp Farms alleges in its Complaint that CSI owes Sapp Farms $24,677.06 for eggplant and squash furnished to CSI from early May 1998 through July 1998, for which CSI has not made any payment or has only made partial payment. Sapp Farms failed to present sufficient evidence to establish facts to show an accurate or reliable market price for eggplant or squash during the period in question. Michelle Sapp, the person who gathered the information concerning the market prices, testified that she: (a) did not view the market reports for each day in question; (b) did not remember what geographic area the market reports she viewed pertained to; (c) did not know whether the market prices she viewed were "shipping point" or "terminal point" prices; (d) did not know what the range was for market price each day; and (e) did not know where in the range she chose to establish the market price. Sapp Farms contends that CSI agreed to pay a minimum price of $4.00 for squash and $5.00 for eggplant. Richard Sapp testified that CSI agreed to pay Sapp Farms a minimum price of $4.00 for squash and $5.00 for eggplant. However, I find that Richard Sapp's testimony lacks credibility in this regard due to the fact that this alleged "minimum price" applied regardless of the grade, which is highly unlikely. There is insufficient evidence to establish facts to show that CSI agreed to pay Sapp Farms a minimum price for eggplant and squash. The following is a listing of the eggplant and squash delivered to CSI by Sapp Farms for which CSI has failed to pay Sapp Farms: Date Product Grade Quantity *Price Amount Owed Ticket 6/10/98 Eggplant Fancy 208 $ 4.75 $ 988.00 422 6/10/98 Squash (CN) No. 2 4 $ 6.75 $ 27.00 425 6/15/98 Eggplant Fancy 160 $ 4.40 $ 704.00 443 6/16/98 Squash (SN) Fancy 80 $ 6.25 $ 500.00 447 6/16/98 Squash (SN) Medium 80 $ 4.25 $ 340.00 447 6/16/98 Squash (CN) No. 1 10 $ 8.50 $ 85.00 447 6/20/98 Squash (SN) Medium 47 $ 4.50 $ 211.50 466 6/27/98 Squash (CN) No. 1 126 $ 4.90 $ 617.40 497 6/27/98 Squash (CN) No. 2 59 $ 3.75 $ 221.25 497 6/29/98 Squash (CN) No. 1 113 $10.00 $1,130.00 502 6/29/98 Squash (SN) Fancy 154 $ 2.00 $ 308.00 502 7/07/98 Squash (CN) No. 2 20 $ 5.25 $ 105.00 509 7/08/98 Squash (CN) No. 1 13 $ 9.50 $ 123.50 515 7/08/98 Squash (CN) No. 2 20 $ 5.75 $ 115.00 515 Total $5,475.65 *Prices used in this calculation are the same as the price paid by CSI to Sapp Farms for the same product, with the same grade, on the same day or the nearest day to that day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and the mitigating circumstances, it is recommended that the Department enter a final order granting Sapp Farms relief by ordering CSI to pay Sapp Farms the sum of $5,475.65. DONE AND ENTERED this 27th day of August, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1999. COPIES FURNISHED: 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 508 Mayo Building Tallahassee, Florida 32399-0800 David H. Galloway, P.A. Attorney at Law 506 North Alexander Street Post Office Box 848 Plant City, Florida 33564-0848 Robert E. Goldman, Esquire 1543 Seventh Street, Suite 202 Santa Monica, California 90401 Joseph Monahan New York Surety Company 123 William Street New York, New York 10038-3804
The Issue Whether Respondent, L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc. and its surety, Western Surety Company owes Petitioner $4,210.00 for East Palatka Holly Trees.
Findings Of Fact Petitioner A.D. Andrews, Inc. is a producer of agricultural products, pursuant to Section 604.15 (9), Florida Statutes. Respondent L.M.I. East, Incorporated d/b/a L.M.I. Landscapes, Inc. is a dealer in agricultural products pursuant to Section 604.15 (2), Florida Statutes. Respondent’s surety is Western Surety Company Teal Pomeroy, a salesman for Petitioner, and Pat Tronzano, Purchasing Manager for Respondent, have a business history representing their respective principals. All previous dealings have been satisfactory, and they share a mutual respect. While at a trade show in Orlando, Florida, Teal and Tronzano entered into an oral agreement for the sale of 31 East Palatka Holly bushes/trees (30 at the rate of $135.00 each, and one for $160.00) at a total price of $4,210.00, due from Respondent to Petitioner. Neither participant in this arrangement testified to any oral terms covering “point of sale” or a guarantee of any condition of the hollies at a final destination. Neither participant testified that a standard course of business on these issues had arisen between them as a result of their prior transactions. On October 9, 2007, Mr. Tronzano sent a third party freighter (trucker) to pick-up the hollies at Petitioner's nursery in Chiefland, Florida, and transport them, at Respondent’s expense, to Selena, Texas, for planting and landscaping by Respondent. Mr. Tronzano did not accompany the third party freighter to Petitioner's nursery or on the subsequent trip to Texas. He never saw the hollies in question prior to loading or while they were still on the truck after loading. The trucker selected by Respondent was one specially skilled in the transport of landscape plants, and Respondent has successfully used him for prior purchases and transports. The third party freight truck arrived at Petitioner’s Chiefland, Florida, nursery at approximately 11:00 a.m. on October 9, 2007, before all the hollies had been dug up. However, the trees that were ready to load and those that had to be dug up were loaded by Petitioner, and by 2:00 p.m., the truck, fully loaded, left Petitioner’s property. Petitioner’s invoice clearly states: ATTENTION: If these trees are not in satisfactory condition when received, do not accept them. We do not replace trees. Please note any discrepancies or problems with materials. The invoice does not show the trucker noted any problems with the hollies. The trucker also signed the delivery ticket under the statement, “I acknowledge that trees were received in good condition.” Approximately 48 hours later, Mr. Tronzano received a report from Texas that when the freighter delivered the hollies to the Selena, Texas site, some hollies were dead and other were dying. Mr. Tronzano did not personally witness anything at the final destination. Respondent's photographs in evidence, the date of which has not been automatically printed on them, show some trees which had already been unloaded in Texas with dried- out root balls. They show no trees with dried-out root balls still on the truck. All photographs show intact root balls, although they are dusty and some trees are clearly dead or dying. One tree is dead in a pot. Although it had taken Respondent’s trucker approximately 48 hours to get the hollies to their ultimate destination in Texas, the normal driving time is 16-20 hours. Because federal regulations require a period of rest for commercial drivers every eight hours, Respondent put forth the theory that because there had been a delay of three hours at Petitioner’s nursery while some hollies were dug up and loaded, the delaying effect of three hours snowballed to a total delay of as much as 22-28 hours for the truck’s arrival time at the final destination. This theory is speculative and unsubstantiated by the evidence. Despite some earlier attempts, Respondent did not notify Petitioner of the condition of the hollies at the final destination until October 15, 2007. Respondent concedes that 11 of the 131 hollies were accepted in good condition. Whether one of the survivors was the single holly tree sold for $160.00, is not in evidence. Respondent has not paid Petitioner for any of the hollies. Mr. Tronzano has not had a dry-out problem like this one in ten years. Respondent's second theory of why the hollies arrived at the Texas destination in poor shape is an assertion that the way Petitioner processed and handled the harvesting of the hollies adversely affected their health. Respondent speculates that Petitioner’s digging and immediately loading the just-dug hollies onto the truck sent by Respondent resulted in shock to the hollies’ root systems so that the root systems dried out. Mr. Teal and Mr. Tronzano agree that previous trees (not necessarily East Palatka hollies) sold by Petitioner to Respondent had been "pre-dug" and "staged" by Petitioner in anticipation of the arrival of the freighter. “Staging” means that Petitioner dug up the trees, put them on a trailer, and took them to a centralized loading area at the nursery for Respondent’s pick-up. According to Mr. Teal, the foregoing “pre-dig and stage” method prevents "double-handling" of trees, but many trees are dug up only when a truck arrives at the nursery to take them away. Mr. Teal was not present at the nursery on October 9, 2007, but opined that if the hollies on this occasion had been pre-watered, they would be unlikely to die of shock, despite being dug up and loaded right away. Moreover, the particular trees sold to Respondent came out of a field that Petitioner irrigates, so "dry out" should not have been a problem. Mary Andrews works in Petitioner's business office. She did not know about Respondent's order until the truck arrived on October 9, 2007, but she managed the "dig and load" within three hours of the truck’s arrival. She testified that Petitioner digs trees throughout the year so that when a truck arrives, the trees have not been sitting dry in a field for lengthy periods of time. Petitioner sold 3500 similar trees in the previous year without any dry-out problems. Petitioner had admitted in evidence, without objection, Florida Division of Forestry rainfall records for three locations near Petitioner's nursery. All three official records show six inches of rainfall for the week immediately preceding October 9, 2007. Petitioner maintains that the trucker should have watered the hollies en route. Respondent believes the trucker did water them, but the trucker did not testify, so there is no direct evidence that the trucker watered the hollies en route. The parties have tried to work this situation out, but their respective offers of compromise are not admissible herein, pursuant to Section 90.408, Florida Statutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered that Respondent L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc., shall pay Petitioner, A.D. Andrews Nursery, Inc., the sum of $4,210.00, and that if L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc., fails to pay Petitioner, A.D. Andrews Nursery, Inc., within 30 days of the final order, then Respondent, Western Surety Company, shall pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse Petitioner in accordance with Section 604.21, Florida Statutes. DONE AND ENTERED this 3rd day of June, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. 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 3rd day of June, 2008. COPIES FURNISHED: Teal Pomeroy Qualified Representative A.D. Andrews Nursery, Inc. Post Office Box 1126 Chiefland, Florida 32644-1126 Pat Tronzano Qualified Representative L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc. 1437 Halsey Way Carrollton, Texas 75007-4410 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077
The Issue Whether or not Petitioner is owed $7,097.15 by Respondent Green Acres for various nursery products.
Findings Of Fact Petitioner is a wholesaler engaged in the business of producing agricultural products, primarily nursery plants, since approximately 1953. Green Acres is a retail nursery engaged in the business of selling sod, nursery products, and provision of other related landscaping services. Green Acres is a newly-formed business which commenced operations during the summer of 1992. On August 10, 1992, Green Acres purchased from Petitioner various quantities of flowers and nursery products which are reflected by Petitioner's invoice nos. 5074, 5076, 5077 and 5080 in the respective amounts of $625.25, $1,097.00, $2,927.50, and $383.20. On August 14, 1992, Green Acres purchased another order of nursery products from Petitioner which is reflected by Petitioner's invoice no. 5085 in the total amount of $1,063.75. On August 18, 1992, again Petitioner delivered products to Green Acres based on an order (Petitioner's invoice no. 5060) for the total sum of $599.20. Finally, on September 17, 1992, Green Acres ordered various nursery products from Petitioner (Petitioner's invoice no. 5097), which were delivered to Green Acres for the total sum of $401.25. Petitioner has made numerous attempts to collect for the nursery products that it supplied to Green Acres without success. These efforts to collect included personal trips to the Green Acres nursery by Roy Amerson. When disputes arose as to the pricing of plants, Green Acres unilaterally adjusted the price to the amount that it desired to pay which amount Petitioner accepted without protest based upon the fact that Petitioner's owners were aware that Green Acres was a new nursery and Petitioner was desirous of building a good client over a long period of time. For this reason, Petitioner also extended credit to Green Acres on an open-account basis for a long time without attempting to collect. Petitioner extended credit to Green acres based upon Petitioner's knowledge and understanding of the difficulty that new retail nursery owners undergo in starting a new nursery business. Green Acres suffered fire damage at one of its office buildings on the Friday prior to the Labor Day weekend during 1992. As a result of that fire, Green Acres contends that it paid Petitioner in cash for products and was not properly receipted for those payments. Green Acres maintains that its receipts were destroyed in the fire. Green Acres's contention in this regard was considered; however, it is more likely than not that Green Acres did not pay Petitioner for any nursery products which they have not been granted credit for. In this regard, Petitioner introduced invoices and credit notations for each purchase of products that Green Acres ordered. Those invoices appear to properly reflect the entire series of transactions of the purchase of products from Petitioner with the appropriate credits and adjustments noted. Respondent, State Farm Fire and Casualty Company (State Farm), issued a surety bond to Green Acres for the period during which Petitioner provided nursery products to Green Acres in 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Agriculture and Consumer Services enter a Final Order ordering Green Acres to pay to Petitioner the sum of $7,097.15 within fifteen (15) days after the issuance of its Final Order. Upon the failure of Green Acres to tender the referenced amount to Petitioner, it is FURTHER RECOMMENDED that the Department of Agriculture and Consumer Services direct that the surety company pay over to the Department out of the surety bond posted for such dealer, the amount necessary to cover the indebtedness noted herein of $7,097.15. DONE AND ENTERED this 2nd day of September, 1993, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1993. COPIES FURNISHED: Roy and Barbara Amerson Post Office Box 202 Terra Ceia, Florida 34250 Shelly K. Thomas 9330 Ulmerton Road Largo, Florida 34641 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esq. General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Ms. Becky L. Herald State Farm Fire & Casualty Company 112 East Washington Street Bloomington, Illinois 61710-1001
The Issue Whether, under the provisions of sections 604.15 - 604.34, Florida Statutes, Lester Towell Distributors, Inc., is entitled to recover $2,098 for agricultural products ordered by and delivered to VBJ Packing, Inc
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made. Lester Towell is a dealer in Florida-grown agricultural products. VBJ is a dealer in Florida-grown agricultural products. On May 22, 1995, VBJ placed an order with Lester Towell to purchase a quantity of extra-large green bell peppers. Lester Towell delivered 200 boxes of such peppers to VBJ on May 23, 1995. To fill this order, Lester Towell purchased 63 boxes of peppers from producer Ott Farms, Inc., in Estero, Florida, and 137 boxes from producer Thomas Produce, in Boca Raton, Florida. Lester Towell did not act as agent for these producers; it purchased the products outright. On May 22, 1995, VBJ placed an order with Lester Towell to purchase a quantity of yellow corn. Lester Towell delivered 100 boxes of such corn to VBJ on May 24, 1995. To fill this order, Lester Towell purchased 100 boxes of corn from producer Wilkinson-Cooper, in Belle Glade, Florida. Lester Towell did not act as agent for this producer; it purchased the products outright. On May 24, 1995, VBJ placed an order with Lester Towell to purchase a quantity of jalapeno peppers, white corn, and red radishes. Lester Towell delivered two boxes of jalapeno peppers, 26 boxes of white corn, and 20 boxes of red radishes to VBJ on May 25, 1995. To fill this order, Lester Towell purchased 2 boxes of jalapeno peppers from producer Ott Farms, Inc., in Estero, Florida, and 26 boxes of white corn and 20 boxes of red radishes from producer American Growers in Belle Glade, Florida. Lester Towell did not act as agent for these producers; it purchased the products outright. Lester Towell filed its complaint with the Department of Agriculture and Consumer Services ("Department") pursuant to the provisions of section 604.21(1), Florida Statutes, because VBJ did not pay for the products identified above. There is, however, no evidence to establish that Lester Towell was a producer or the agent or representative of a producer with respect to the products for which it seeks payment. It is, therefore, not a "person" entitled to file a complaint with the Department against VBJ and its surety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the complaint of Lester Towell Distributors, Inc. DONE AND ENTERED this 3nd day of July 1996 in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July 1996
