Findings Of Fact On August 6, 1986, an indemnity bond was executed between RAINMAKER as principal and FIDELITY as surety. The effective dates of the bond were from October 21, 1986, to October 20, 1987. The bond was required under Sections 604.15-604.30, Florida Statutes, in order for RAINMAKER to become licensed as a dealer in agricultural products in Florida. The purpose of the bond is to secure the faithful accounting for a payment to producers or their agents or representatives of the proceeds of all agricultural products handled or purchased by RAINMAKER. The Petitioner, SHAN-RON, is a corporation whose address is 276 Cypress Street, La Belle, Florida. Its purpose is to conduct business by finding buyers for sod located on acreage owned by various cattle ranchers in Lee County, Florida. This practice is commonly known as "bird dogging" in the agricultural trade. The way the business is conducted is as follows: SHAN-RON is contracted by sod installers to whom it sells sod in specific quantities for a fixed price. Once the oral agreement is made, SHAN-RON tells the sod installer where a sod field is located. At this point in the business transaction, the sod installer sends independent truck drivers to the designated sod field. If the sod installer is unable to locate truckers, he telephones a SHAN-RON field foreman. The foreman, as a courtesy, will check to see if any of the independent truckers currently as the sod field can haul a load for the sod installer. Once a trucker is located, employees from SHAN-RON mow the grass, cut the sod, and load it onto pallets owned by SHAN-RON. The truck is loaded with pallets by SHAN-RON employees and the driver is given two copies of the load ticket, one for him and one for the sod installer. The driver delivers the sod and pallets to the address placed upon the load tickets. Upon delivery, the driver has the responsibility to deliver the load ticket to the business office of the sod installer. If he does not deliver the ticket, he does not get paid for hauling the sod. Employees of the sod installer are usually at the delivery site. The sod is laid and the empty pallets are returned to the sod field by the truckers. Every Friday, a representative of SHAN-RON personally delivers a weekly bill to the sod installer in order to collect is owed. When the money is collected, the funds are divided between the rancher whose sod was sold and SHAN-RON. The accountability system used within the sod industry leaves room for a high margin of error at various stages. The SHAN-RON employees occasionally short pallet loads or two layers of sod. The truck drivers occasionally misnamed the sod installer to whom the sod is to be delivered. The truck drivers also occasionally do not take empty pallets under their control back to SHAN-RON. They sell the pallets and pocket the money. The sod installer is financially responsible for the pallet costs. RAINMAKER is a corporation whose address is Post Office Box 7385, Ft. Myers, Florida. The company is primarily in the business of installing sod. It transacted business with SHAN-RON between November 11, 1986, and January 8, 1987. At the time of these transactions, RAINMAKER was licensed as a dealer in agricultural products supported by surety bond number 974 52 23 in the amount of $13,500.00. SHAN-RON, through testimony and the introduction of its business records, proved a prima facie case that RAINMAKER owes $12,964.00 for the purchase of sod between November 11, 1986, and January 8, 1987. Both parties Stipulated that $4,000.00 has been paid on the balance of the account which should be deducted from the balance owed SHAN-RON. In rebuttal to SHAN-RON's presentation, RAINMAKER presented testimony and a business record summary which revealed that six invoices were improperly charged, against its account in the amount of $1,260.00. The record summary was based upon a comparison of load tickets against production records during the time period involved. In addition, RAINMAKER's records reveal that the two drivers, Stormy and Fred Bower, were not paid for delivering the sod to RAINMAKER under the load ticket presentation to the sod installer which was previously described as an accounting method within the business. Because RAINMAKER set forth the issue of delivery discrepancies in its answer to the complaint and competent evidence was presented, $1,260.00 should be deducted from the `balance owed. SHAN-RON presented testimony that it is customary for the company to spray the sod for pest control. RAINMAKER received defective sod from SHAN-RON which contained "Creeping Charlie" weeds during the time of the deliveries in dispute. SHAN-RON was timely notified of the problem, and toad RAINMAKER to have the sod sprayed. A copy of the invoice for $300.00 was sent to SHAN-RON and has not been paid. Although the issue was not raised in RAINMAKER's answer to the complaint, it is properly before the Hearing Officer because of RAINMAKER's timely notification and cure of the defect in the product. The $300.00 should be deducted from the amount owed. Testimony relating to possible sod shortages was rejected as no evidence was presented that shortages occurred in the orders for which SHAN-RON seeks payment. The customary procedure In the sod business for handling credits for shortages requires the buyer to notify the seller within a responsible length of time of the shortages. Such notification did not take place as to the orders in dispute. The amount owed to SHAN-RON by RAINMAKER is $7,404.00. It is officially noticed that SHAN-RON's complaint was originally filed with the department on June 19, 1987, within nine months from the date of sale.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Agriculture enter a final order requiring the Respondent RAINMAKER to make payment to the petitioner SHAN-RON in the amount of $7,404.00. In the event that RAINMAKER does not comply with the department's order within fifteen days from the date it final, FIDELITY should be ordered to provide payment and the conditions and provisions of the bond furnished to RAINMAKER. DONE and ENTERED this 12th day of April, 1988, in Tallahassee, Florida. VERONICA E. DONNELLY 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 12th day of April, 1987. COPIES FURNISHED: Clinton H. Coutler, JR., Esquire Department of Agriculture Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of License and Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650 Shan Ron Sod, Inc. 276 Cypress Street LaBELLE, FLORIDA 33935 Rainmaker Sod, Inc. 2290 Bruner Lane, South East Fort Myers, Florida 33912 Fidelity & Deposit Company of Maryland Post Office Box 1227 Baltimore, Maryland 21203 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Robert Chastain General Counsel Department of Agriculture Mayo Building, Room 513 Tallahassee, Florida 32399-0800
Findings Of Fact Jack G. Baker, d/b/a Jack G. Baker, is an individual in the business of selling sod to others and installing sod himself. DeBusk Sod, Inc. (DeBusk) is a corporation in which the majority of the shares are owned by Susan D. Meagher, whose husband, James, is the minority shareholder. DeBusk installs sod in the central Florida area. Just prior to July 1992, DeBusk contacted Baker regarding the purchase of sod. Because of an ongoing drought which was affecting the area DeBusk ordered two truckloads of sod to sample the quality of the product immediately prior to July 5, 1992. DeBusk previously had ordered many thousands of dollars worth of sod from Baker. Baker loaded and transported two truckloads of sod to the Meaghers, who were satisfied with the quality of the sod and purchased an additional 186 pallets which they arranged to pick up in Baker's field. There was not a written contract for the sale of sod; however, all of the parties agree that DeBusk ordered 186 pallets of sod at $17.00 per pallet, f.o.b. (free on board) DeBusk's trucks in Baker's field. DeBusk paid Baker $322.00 on August 25, 1992 and $833.00 on September 22, 1992, in partial payment for the sod. There remained a balance owing of $2,007.00 which was not paid by DeBusk. DeBusk ordered the sod after receiving the sample truckloads. James Meagher drove one of the trucks and was present when the sod was cut and loaded. At that time, James Meagher had the opportunity to inspect the sod being cut and loaded. Meagher accepted delivery of the sod in Baker's field. Conflicting testimony was received at the hearing regarding the nature of the warranty on sod in the course of selling this agricultural product. The most credible evidence is that bahia sod is generally sold with an implied warranty that the product is free of large amounts of weeds or disease, and will take root and grow if properly installed and watered. James Meagher testified, and his testimony was uncontroverted, that the sod in question was properly installed and watered. Jack G. Baker testified regarding bahia sod. Bahia sod is exceptionally hardy and, if properly installed and watered, will survive and take root. The sod provided to DeBusk was cut and delivered at the same time as sod which was cut for Baker's own sodding operation and that of another independent sod company. The sod which Baker cut from this field was installed and survived when watered, and Baker received no complaints from the other sodding contractor regarding the sod which Baker had sold him. James and Susan Meagher contacted Mr. Baker when the sod which they had purchased from Baker began to die and asked Mr. Baker to inspect the sod and stand behind the product. Mr. Baker refused to inspect the product asserting that if the sod was dying, DeBusk had failed to water the product as required. DeBusk refuses to pay for that portions of the sod purchased which died because it failed to conform to the implied warranty. Carl Hiers, a sodding contractor, testified regarding bahia sod. If cut too thin during a severe drought, bahia sod can go into shock and die although it is watered. Mr. Hiers did not see the sod in question, and could not offer an opinion about whether it had failed to thrive because it had been cut too thin. Jack Baker testified regarding cutting sod too thin. If sod is cut thick enough to hold together, it is thick enough to survive the shock of being cut and transplanted. A portion of the sod fell from one of the last loads cut for DeBusk and lay in Baker's field for three days before a neighbor of Baker's picked it up and used it to sod an area over a septic tank where it grew and thrived.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DeBusk Sod have sixty days within which to pay to Jack G. Baker d/b/a Jack G. Baker Sod $2,007.00, and failing in that, Auto Owners Insurance Company be required to pay to Jack G. Baker d/b/a Jack G. Baker Sod $2,007.00 from DeBusk Sod, Inc.'s agricultural bond. DONE AND ENTERED this 7th day of May, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 7th day of May, 1993. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Jack G. Baker Jack G. Baker Sod 1415 Bruno Road Clermont, FL 34711 James and Susan Meagher DeBusk Sod, Inc. 7555 East Turner Camp Road Inverness, FL 34453 Brenda Hyatt, Chief Department of Agriculture Bureau of Licensure and Bond 508 Mayo Building Tallahassee, FL 32399-0800
The Issue The issues in this case are whether Raysbrook Sod, Inc. (Respondent), is indebted to Florida Sod, Inc. (Petitioner), related to the sale and purchase of sod, and, if so, in what amount.
Findings Of Fact Petitioner is a corporation engaged in the business of harvesting sod. Petitioner is located in LaBelle, Florida. Respondent is a corporation located in Riverview, Florida, and is also engaged in the sod business. In September 2007, Respondent was interested in purchasing some sod in order to satisfy a customer's needs. Respondent's regional supervisor, Gabriel Monsivais, approached a gentleman by the name of Trampis Dowdle about purchasing sod. Monsivais had never met Dowdle and, in fact, knew him only as "Mr. Trampis." Dowdle represented that he could obtain sod from Petitioner, and a deal was struck. There was no written contract between Monsivais and Dowdle, nor--quite interestingly- -between Petitioner and Respondent. Nonetheless, Respondent had its drivers go to Petitioner's sod field and begin loading sod for Respondent's use. In all, approximately 1,700 pallets of sod were acquired from Petitioner's field by Respondent. Each time a load of pallets was taken, a Load Sheet was created to show the number of pallets, the location of the field, and the name of the person taking the sod. The driver of the truck was expected to sign the Load Sheet, indicating that the sod had indeed been received. There is no dispute between the parties about the number of pallets taken by Respondent's drivers.1 As sod was taken by Respondent, Petitioner would issue an invoice reflecting the amount of sod and the price to be paid. The invoices were sent to Respondent via U.S. Mail. The total amount billed for the sod was $42,559.16. Respondent issued a check (No. 8899) in the amount of $1,271.16, made payable to Petitioner on November 30, 2007, in payment of the first invoice from Petitioner. No further checks from Respondent were received by Petitioner, leaving a balance due of $41,288.00.2 Respondent, however, did attempt to make payments for the sod it purchased. Respondent wrote checks to Dowdle based on Dowdle's representations that he either owned Petitioner's company or was working for Petitioner. In fact, Dowdle neither owned nor was in any way affiliated with Petitioner. Dowdle was apparently defrauding Respondent (and possibly Petitioner as well). Respondent's representative, Joseph Bushong, and Petitioner's representative, Jake Alderman, had never met prior to the day of the final hearing in this matter. There was no written contract between the parties. The entire business relationship between the parties was done orally, based on conversations between Monsivais and Dowdle. Nonetheless, Respondent did obtain over $42,000.00 worth of sod from Petitioner. Respondent does not contest this fact. Respondent's actions indicate acknowledgement of the presumed relationship between the parties. Respondent submitted a credit application to Petitioner with references and credit information to be used by Petitioner in extending credit to Respondent for the sod it was purchasing. Respondent issued at least one check directly to Petitioner for payment of the sod in response to an invoice issued by Petitioner. The check was made payable to "Florida Sod" in the amount of $1,271.16. That check directly corresponds to the amount in Invoice No. 1697 from Petitioner dated October 8, 2007. Respondent did receive additional invoices from Petitioner for the sod Respondent had purchased and received. Clearly, there was an understanding between the two companies that a business relationship existed. After making its first payment to Petitioner, Respondent's subsequent payments for the sod were made directly to Dowdle and his companies. One such payment, made by way of a credit card, was actually applied to a restaurant with which Dowdle apparently had some business connection. Other payments were made via checks made payable to other Dowdle interests. Respondent made payments to Dowdle in the mistaken belief that Dowdle was the agent of or employed by Petitioner. In fact, Dowdle has never been affiliated with Petitioner. Petitioner did not receive any of the payments made by Respondent to Dowdle. Petitioner and Dowdle are not related or affiliated in any fashion (other than a prior arm's-length sod purchase between the two). It is clear that Dowdle received the payments intended for Petitioner in payment for the sod purchased by Respondent. Dowdle, whose whereabouts are unknown by the parties, did not provide Petitioner with the payments. Rather, from the evidence, it appears that Dowdle kept the payments, thereby committing a fraud on both Petitioner and Respondent. Though both parties are somewhat at fault in this matter for failure to utilize normal and acceptable business practices, one or the other party must necessarily bear the burden of payment. The evidence supports Petitioner in this regard because it best followed normal business procedures. Had Respondent made its remittance checks payable to Petitioner (who had issued the invoices), Dowdle would not have been able to abscond with the money. Had Respondent obtained some affirmative proof that Dowdle was an agent of Petitioner, Respondent would have known better than to provide money to Dowdle. Had Respondent contacted Petitioner directly instead of relying on third parties (its foreman and Dowdle), the deception would have been uncovered. However, the facts of this case support the proposition that Petitioner made a valid sale of sod to Respondent, and Respondent did not pay Petitioner for the sod.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services requiring Respondent to pay Petitioner the sum of $41,288.00 within 30 days of entry of a final order. DONE AND ENTERED this 31st day of October, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2008.
The Issue 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.
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.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue its final order requiring that Respondent, Garrison Irrigation, Inc., pay to Petitioner, C. M. Payne and Son, Inc., the amount of $2,996.00 for the purchases of Bahia sod from Petitioner on January 23, 26, and 27, 2004, and February 2, 2004. It is further RECOMMENDED that if Respondent, Garrison Irrigation, Inc., fails to comply with the order directing payment, the Department shall call upon the surety, Continental Casualty Company, to pay over to the Department from funds out of the surety certificate, the amount needed to satisfy the indebtedness. DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 22nd day of December, 2004.
The Issue Whether Respondent owes Petitioner $14,080 on account for vegetables sold and delivered at the request of Respondent.
Findings Of Fact Petitioner, M.O. "Buster" Williams, is an agent for the producers of agricultural products, carrots, red radishes and white corn. Respondent, Dougal M. Buie, III, d/b/a Blue Star Citrus and Vegetables, is a dealer of such products in the normal course of its business activity. Respondent is licensed by the Department of Agriculture and Consumer Services and is bonded by First Union National Bank of Florida. Petitioner sold Respondent carrots, red radishes and white corn by the truck load between the period May 19, 1993 and June 14, 1993, and was given a Bill of Lading therefor. Respondent was sent an Invoice for each shipment and payment was due in full following receipt of the Invoice. As of the date of the formal hearing, each invoice for shipments made between May 19 and June 14, 1993 remains due and owing and unpaid. The total amount of indebtedness owed by Respondent, Buie, to Petitioner is $14,080.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring Respondent to pay to the Petitioner the sum of $14,080.00 DONE and ENTERED this 16th day of March, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 16th day of March, 1994. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Robert F. Vason, Jr., Esquire Potter, Vason and Clements 308 East Fifth Avenue Mount Dora, Florida 32757 M.O. Buster Williams 1412 Raintree Lane Mount Dora, Florida 32757 Lewis Stone, Esquire P. O. Box 2048 Eustis, Florida 32727-2048 First Union National Bank of Florida 21 North Grove Street Eustis, Florida 32726
The Issue The issue in this case is whether Petitioner is entitled to payment from Respondent for sod that it sold.
Findings Of Fact Petitioner grows sod and sells it to persons who are in the business of installing sod. Respondent installs sod for its customers, such as homeowners, businesses, and schools. Both parties are experienced in the sod business, although Respondent has more experience than Petitioner with Floratam sod. Respondent is a large user of sod. Petitioner sold from 3-6 loads daily to Respondent from July to October, 1993. Until the loads in question, there were no problems, and Respondent paid for the sod. On October 5, 1993, Petitioner sold Respondent 18 pallets of Floratam sod. At the agreed-upon rate of 6 cents per square foot, the price of this sod was $432. The next day, Petitioner sold Respondent 36 pallets of Floratam Sod for $864. On October 11, Petitioner sold Respondent 34 pallets for $816. The next day, Petitioner sold Respondent 18 pallets for $432. And on October 14, Petitioner sold Respondent 18 pallets for $432. The total price of the Floratam sod sold to Respondent was thus $2976. For each sale, Petitioner cut the sod and loaded it on the truck of an independent contractor hired by Respondent to transport the sod to the customer's site for installation. For each load, the driver signed an invoice indicating the amount of sod and stating: Your signature acknowledges acceptance. Any claims must be made within 24 hours of delivery or pick up. A 1.5 percent (18 percent per annual) service charge will be added to all accounts 30 days past the invoice date. In the event it is necessary to turn the invoice over for collection or the same has to be collected upon demand of an attorney[,] purchaser agrees to pay all attorney's fees and costs for such collection. The sod was in below-average condition. Petitioner agreed to sell it, and Respondent agreed to buy it, in "as is" condition. The sole warranty attaching to the sod was that Respondent could assert a claim against Petitioner if the claim was asserted within 24 hours of pick up. Sod harvested in early October has undergone the stress of summer weather, in which heat and moisture can damage the grass and leave it in weakened condition. There was little sod left in the area, Respondent's demand for sod due to contractual commitments was great, and Respondent was left with few options but to try to use Petitioner's sod. The price paid by Respondent was somewhat reduced to reflect the below-average condition of the sod. Several factors militate against Respondent's claim that the sod was of such poor quality as to warrant cancellation of the invoiced amounts. First, Respondent did not timely assert a claim against the sod. Respondent did not assert a claim within the 24 hours set forth in the invoices. More important, Respondent ignored subsequent billings for the sod and did not complain about the sod until Petitioner's president spoke with Respondent's president and demanded payment. This conversation took place about 70-80 days after the sales. Other important factors undercutting Respondent's defense are the satisfaction of other purchasers of sod in the same time period and the questionable cultivation practices of some of Respondent's customers. Several persons bought Floratam sod from Petitioner in late September and early October. In most cases acknowledging that the sod was in below-average condition, these purchasers reported that they knew that the sod was purchased in "as is" condition and that, with appropriate irrigation and fertilizing, the sod was successfully established in the customers' property. The record suggests that the some of Respondent's customers, including a major institutional customer, may not have been as careful in maintaining the newly installed sod that was already in somewhat stressed condition.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding Respondent liable for the sum of $2976, plus interest at 18 percent annually, and, if Respondent does not pay said amount, ordering the surety to pay said amount, up to the amount of the bond. ENTERED on April 20, 1994, 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 on April 20, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-8: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance. 3-6: rejected as subordinate. 7-8: adopted or adopted in substance. 9: rejected as subordinate. 10-14: adopted or adopted in substance. 15: rejected as subordinate. 16-22: rejected as unsupported by the appropriate weight of the evidence. 23: rejected as unsupported by the appropriate weight of the evidence to the extent of implication that Respondent initiated the call to express his concerns about the sod quality. 24-26: rejected as subordinate. 27: rejected as recitation of evidence and subordinate. 28-30: rejected as subordinate. 31: [omitted from proposed recommended order]. 32: rejected as irrelevant given "as is" nature of subject transaction, as well as limitation of this remedy to sod against which timely claims are made. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Attorney Kristy C. Shaffer P.O. Drawer 1820 LaBelle, FL 33935 John Charles Coleman Coleman & Coleman 2300 McGregor Blvd. Ft. Myers, FL 33901 Ohio Casualty Insurance Co. Legal Department 136 North Third St. Hamilton, OH 45025
The Issue The issue for determination is whether Respondents owe Petitioner approximately $65 for one pallet of sod which Petitioner delivered to a third party building contractor's construction site at the instigation of Respondent.
Findings Of Fact Petitioner is a producer of agricultural products, grass sod, and Respondent Arsham & Associates, Inc., (Arsham), is a dealer of such products in the course of its normal landscaping business activity. Respondent Safeco Insurance Company is the bonding agent for Respondent Arsham pursuant to Section 604.20, Florida Statutes. Petitioner generally deals on a cash basis with customers, unless the customer is licensed by the Department of Agriculture and Consumer Services for the sale of agricultural or horticultural products. Customers, who are licensed, may maintain an open account status with Petitioner. Respondent Arsham was such a customer. For approximately two years, Respondent Arsham and Petitioner enjoyed a relationship whereby Petitioner sold Respondent Arsham grass sod for various projects. An employee of Petitioner provided sod installation services on an independent basis to Respondent Arsham for these shipments. On Monday, September 26, 1988, Tom Shaldjian, the president of Respondent Arsham, discussed with Petitioner's personnel an arrangement whereby Petitioner would provide grass sod for a particular project under construction by a third party builder. Shaldjian told Petitioner that billing for the sod should be made directly to this builder, rather than to Respondent Arsham as had been the practice on previous occasions. However, Shaldjian promised Petitioner personnel that if payment for the sod was not made by the builder, then Respondent Arsham would pay the bill. Petitioner agreed with this arrangement. Confirmation of the required quantity of sod, approximately 15 pallets or 7500 square feet, was made by Shaldjian on Wednesday, September 28, 1988. Petitioner delivered 15 pallets of grass sod to the building site on Friday, October 28, 1988. In his independent capacity, an employee of Petitioner provided installation services at the site for the grass sod. Subsequent to the delivery and installation of the sod, Petitioner followed Respondent's instructions and submitted a bill to the construction builder for a total amount of $ 1033.50. Of this amount, $975 was allocated to 15 pallets of sod at a cost per pallet of $65. The remainder of the amount consisted of sales tax in the amount of $58.50. The builder paid only $964.60, or an amount equal to the cost of 14 pallets plus 6 per cent sales tax. Shaldjian, Respondent Arsham's president, visited the construction site after what he determined to be the completion of the grass sod installation and noted that almost one complete pallet of grass sod had not been utilized. Only a few pieces of sod were missing from the pallet. As a result of this observation, he later advised Petitioner that Respondent Arsham would not be responsible for paying the $65 deducted by the builder from the initial bill for the 15th pallet of sod. Shaldjian's testimony that Petitioner worked this particular sod job alone and without the involvement of Respondents is not credited in view of other testimony establishing that Petitioner had no arrangement or contract with the builder regarding the sale of the grass sod in question beyond submission of the bill for the product, after delivery, to the builder as opposed to Respondent Arsham. Testimony of personnel employed by Petitioner establishes that the sod in this instance was a perishable product in view of weather conditions at the time, making salvage of any sod remaining after the installation impossible. The proof fails to establish that Petitioner took possession of any grass sod remaining at the conclusion of its installation or otherwise obtained any salvage value from any of the product which may have been left over.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered requiring Respondents to pay Petitioner the sum of $68.90. DONE AND ENTERED this 7th day of June, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 7th day of June, 1989. COPIES FURNISHED: Arsham & Associates, Inc. 254 Longwood Hills Road Longwood, Florida 32750 Safeco Insurance Company of America Safeco Plaza Seattle, Washington 98185 Hillside Sod Farms, Inc. 1620 E. State Road 46 Geneva, Florida Hon. Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-1550 Mallory Horne General Counsel 513 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650
The Issue Whether the Petitioner established that it is entitled to compensation pursuant to sections 604.15 through 604.34, Florida Statutes (2013).1/
Findings Of Fact The Petitioner grows and sells grass sod in the State of Florida, thus, meeting the statutory definition of a "producer of agricultural products."2/ Respondent is a licensed "dealer in agricultural products," as defined by chapter 604, Florida Statutes.3/ Sometime in November 2013, the Petitioner and American Sod entered into a verbal contract, where the Petitioner would furnish bahia grass sod for Respondent. The initial invoices for deliveries to American Sod on November 7, 8, 11 and 14, 2013, show that the Petitioner charged American Sod $0.055 for each sod square delivered. However, the price increased to $0.065 for each sod square on November 15, 17, 21, December 10, and 17, 2013, based on the agreement of the parties that the price would increase if American Sod failed to timely pay the invoices. Here, it is not disputed that American Sod failed to timely pay the Petitioner for its sod. The invoices and testimony show that the Petitioner charged American Sod for sod, as well as for deposits on the wooden pallets used for delivery of the sod. The total amount owed by American Sod is $4,378.92. Out of this total amount owed, the facts show that $3,016.92 is attributed to American Sod's failure to pay for the sod and $1,362.00 is for the pallets.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, American Sod Services, Inc., pay the Petitioner, Other Side Sod Company, LLC, the sum of $3,016.92. It is further RECOMMENDED that if American Sod fails to timely pay the Petitioner, as ordered, that the Respondent, Auto-Owners Insurance Company, as surety, be ordered to pay the Department of Agriculture and Consumer Services as required by section 604.21, Florida Statutes, and the Department reimburse the Petitioner as set out in section 604.21, Florida Statutes. DONE AND ENTERED this 20th day of August, 2014, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2014.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: In January, 1990, the Respondent filed an application for credit with the Petitioner. The terms and conditions of the credit application provided: "All written 'Terms and Conditions of Sale' on invoices, statements, contracts or other written agreements must be observed and performed as stated." Further, the application provided: Payment of all amounts due shall be made not later than 30 days from the billing date. Amounts in default will be subject to a SERVICE CHARGE of 1 1/2 % per month (18 % Per Annum) on the unpaid balance. Failure to make payment within terms will result in cancellation of credit. Following acceptance of that application, Respondent sought to purchase sod from Petitioner's LaBelle sod farm. Invoices issued by Petitioner to Respondent at the time of the delivery of the sod provided that the amounts owed would be payable upon receipt of invoice. Further, the printed invoice required the purchaser to make claims within 24 hours of delivery or pick up. The invoices reiterated the 18 percent service charge for past due accounts. From December, 1990, through January 17, 1991, Respondent purchased and accepted in excess of $45,000 worth of sod from the Petitioner. The invoices for those purchases are identified in this record as Petitioner's exhibit 2. From January 30, 1991 until March 4, 1991, Respondent purchased and accepted $4,664.00 worth of sod from the Petitioner. The invoices for those purchases are identified in the record as Petitioner's exhibit 3. In February, 1991, when the Petitioner became concerned about nonpayment for the amounts claimed, contact with the Respondent was made for the purpose of resolving the matter. When those efforts failed to secure payment, the Petitioner instituted action through the Department of Agriculture against the Respondent's bond. The Petitioner claimed $45,080.25 was due for the invoices prior to January 30, 1991. The Petitioner claimed $4,664.00 was owed for the invoices subsequent to January 30, 1991. Subsequent to its claims, Petitioner received payments from the Respondent in the following amounts: $5,000.00 on March 11, 1991; $5,000 on March 26, 1991; and $2,000.00 on April 30, 1991. Applying the total of those payments ($12,000) to the indebtedness on the first claim reduces that amount to $33,080.25. Prior to the claims being filed, Respondent had notified Petitioner that some sod deliveries had been unacceptable because of the quality of the sod or the amount. Respondent claimed the Petitioner had "shorted" the square footage amounts per pallet so that Respondent was being charged for a pallet that did not contain the requisite square footage of sod. On one occasion, in January, 1991, the Petitioner gave Respondent a credit in the amount of $1,173.75 for either refund on poor quality sod or a shortage. The Respondent continued to purchase sod from Petitioner until its credit was no longer accepted by Petitioner, i.e. March 4, 1991. Respondent did not, within 24 hours of receipt of sod, make a claim regarding the quality of the sod or the amount. By letter dated March 14, 1991, the Respondent, through its attorney, advised Petitioner as follows: St. Amour Sod Services, Inc., does not dispute the balance due to you as set forth in your letter and they will pay same in payments that are being determined now. For your information, the balance accrued because of the loss of several of our customers resulting from the poor quality of sod purchased from your firm. Respondent did not timely challenge the quality of the sod accepted, and did not present evidence regarding its alleged poor quality.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Agriculture and Consumer Services enter a final order finding that Respondent is indebted to Petitioner in the amounts of $33,080.25 and $4,664.00, with service charge to be computed through the date of the final order; directing Respondent to make payment of the amounts to Petitioner within 15 days following the issuance of the order; and, notifying all parties that if such payment is not timely made, the Department will seek recovery from Respondent's surety, Aetna Casualty and Surety Company. DONE and ENTERED this 13th day of March, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1992. APPENDIX TO CASE NOS. 91-6388A AND 91-6389A RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER: 1. Paragraphs 1 through 4 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: Paragraph 1 is accepted. Paragraphs 2, 3, 4, 6, 7, and 8 are rejected as contrary to the weight of the credible evidence or unsupported by the record in this case. With regard to paragraph 5, that portion of the paragraph which states the amount of payments made by Respondent ($12,000) is accepted. Otherwise, rejected as stated in 2. above. COPIES FURNISHED: Barry L. Miller P.O. Box 1966 Orlando, FL 32802 Gary A. Ralph 2272 Airport Rd. South, Ste. 101 Naples, FL 33962 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler General Counsel Dept. of Agriculture & Consumer Svcs. The Capitol, PL-10 Tallahassee, FL 32399-0810 Aetna Casualty & Surety Company Attn: Legal Dept. 151 Farmington Ave. Hartford, CT 06156
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Respondent, William R. Daniels, has been a farm labor contractor since 1949. Respondent retained the services of Edward J. Smith to assist him in fruit harvesting activities during the 1987 season. On February 18, 1988, Tommy L. Sumpter, a Compliance Officer employed by Petitioner, performed a compliance check on fruit harvesting activities located off 66th Avenue in Vero Beach, Florida. The compliance check by Sumpter revealed, that Edward J. Smith was supervising citrus workers on behalf of Respondent. Smith transported workers to the citrus field in Vero Beach in van owned by Respondent. Smith displayed his Federal Certificate of Registration which was valid through December 1988. Smith displayed his State Certificate which expired in December 1987. A confirmation check of Smith's Florida Certificate of Registration reveals that his certificate, in fact, expired on December 31, 1987. Smith registered at the Petitioner's Fort Pierce Job Service Office on February 23, 1988. Mr. Smith was cited for failing to register as required by section 450.30, Florida Statutes. Respondent submitted a verification of employment form which indicates that Smith was employed by him on October 15, 1987, and was paid $75.00 minus social security contributions, per truck load of citrus harvested by Smith's workers. By letter dated May 3, 1988, Respondent was issued the subject Administrative Complaint and notified that a civil money penalty was being assessed against him in the amount of $500.00 on the basis that he contracted for the employment of farm workers with a farm labor contractor before that contractor displayed a current certificate of registration issued by Petitioner. When Respondent retained the services of Smith, as a farm labor contractor, Smith's Florida Certificate of Registration was expired and he therefore could not have displayed a current certificate of registration to Respondent before he was employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order imposing a $500.00 civil penalty against Respondent payable within thirty days of the issuance of its final order, for contracting for the employment of farmworkers with a farm labor contractor before the farm labor contractor displayed to him a current certificate of registration issued by Petitioner. DONE and ORDERED this 19th day of January, 1989, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1989. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Suite 117, Montgomery Building 590 Executive Center Circle East Tallahassee, Florida 32399-2152 William R. Daniel 227 Sterrett Circle Port St. Lucie, Florida 33395 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152
