The Issue The issue is whether Respondent Allen’s Sod Service owes Petitioner Lake Jem Farms, Inc., money for grass sod.
Findings Of Fact Before the transaction of business which is the subject of this proceeding, Petitioner’s predecessor sold lawn sod to Respondent over a period of time. Petitioner and Respondent verbally agreed that payment of Respondent’s indebtedness to Petitioner would be forthcoming upon Respondent’s retirement of indebtedness to Petitioner’s predecessor. Despite this condition of payment to Petitioner’s predecessor, Respondent nevertheless made payments to Petitioner for grass sod, thereby effectively waiving the condition with regard to amounts presently owed to Petitioner. Respondent made 24 purchases of sod from Petitioner during the months of August and September 1999, and paid Petitioner for 18 of the sod purchases. Six purchases remained unpaid for a total of $6,244.52 owed to Petitioner by Respondent. Respondent’s representative claimed at final hearing that certain sod purchases were defective, but admitted the six sod purchases for which money was still owed to Petitioner, were not among the defective purchases. Other than the allegations of other defective sod purchases, Respondent’s representative presented no direct, competent evidence of the existence of the defective products. Additionally, the evidence establishes that Respondent’s representative signed for each individual load of sod, certifying that the sod was acceptable. Thereafter each sod purchase entered into possession of Respondent’s employee for transport to the work site.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent owes Petitioner the sum of $6,244.52, which, if unpaid, is due from Respondent Fidelity & Deposit Company Of Maryland under the bond. DONE AND ENTERED this 20th day of April, 2000, in Tallahassee, Leon County, Florida. DON W. 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 20th day of April, 2000. COPIES FURNISHED: Michael A. Croak, Esquire 14229 U.S. Highway 441 Tavares, Florida 32778 Rena Weekly, Qualified Representative Allen’s Sod Service 8148 Southeast 147th Place Summerfield, Florida 34491 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 Honorable Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
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.
Findings Of Fact Petitioner, Hillside Sod Farms, Inc., is a producer of agricultural products, grass sod. Respondent, S. J . Harper Landscaping Enterprises, Inc., is a dealer of such products in the normal course of its landscaping business activity. 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 products. Customers who are licensed may maintain an open account status with Petitioner. Respondent is licensed by the Department. The Respondent has maintained an open account with Petitioner since 1986. Petitioner sold Respondent grass sod by the truck load for various projects, and was given an invoice therefor. Under the terms of the account, payment was due in full the week following receipt of the sod. On November 21, 1988, including invoice number 12284, Respondent's account balance was $2,098.80. On November 25, 1988, the account balance was $3,129.12. On December 12, 1988, Respondent paid on the account the sum of $2,594.88, leaving a balance due, owing and unpaid of $534.24. Respondent's alleged that in early November, 1988 several trucks loads that were accepted by Respondent were short of sod by approximately eight pallets (each pallet contains 400 square feet of sod) Simon J. Harper, Respondent'S president, reported this fact to Petitioner's foreman, Larry Poole, at night after the work day. He did not reject the trucks with the lesser amount of sod on them, but accepted them. Respondent did not file a complaint or objection to the billing, verbally or in writing, to an officer in the Petitioner's company, although he had dealt with the company for years. Respondent estimated the amount of sod it believed they had been shorted and sent a check for the unpaid balance, less the charges for shorted sod. The amount withheld was the sum of $534.24.
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 $534.24. DONE AND ENTERED this 31st day of January, 1990, 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 31st day of January, 1990. COPIES FURNISHED: Avery P. Wisdom Vice President Hillside Sod Farms, Inc. 1620 East State Road 46 Geneva, FL 32732 Simon J. Harper President S. J. Harper Landscaping Enterprises, Inc. 205 Zenith Point Geneva, FL 32732 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Affairs Mayo Building Tallahassee, FL 32399-0800 Ben H. Pridgeon, Jr. Chief Bureau of License and Bond Department of Agriculture and Consumer Affairs Mayo Building Tallahassee, FL 32399-0800 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, FL 32399-0810 Mallory Horne General Counsel 515 Mayo Building Tallahassee, FL 32399-0800
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
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
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
Findings Of Fact Robert J. Walsh and Company, Inc. has been in the business of selling agricultural products since 1962. It is a "dealer in agricultural products" as defined in s. 604.15(1), Florida Statutes (1985). It is not a "producer" as defined in s. 604.15(5), Florida Statutes (1985). Walsh's modus operandi which it has used for many years is to have its salesmen call on landscapers, nurseries and other customers for trees, plants and other agricultural products to determine their needs. These salesmen have the prices of products and their availability from producers and the salesmen take orders from these purchasers. This order is sent to the producer who delivers the product to the purchaser and sends Walsh a copy of the delivery ticket. Walsh bills the customer for the product delivered and the producer bills Walsh for the consumer-cost of the product less a 20-25 percent discount from which Walsh derives its profit from the sale. The producer relies solely on Walsh for payment for the product it produces and delivers to the customer. Walsh has no authority to sell the product at a price other than that set by the producer. In any event, the producer bills Walsh for the product delivered at the producer's established price less the discount it gives Walsh for acting as intermediary in the sale. If products are damaged in transit, the producer's driver will make any necessary adjustment with the customer or return the damaged plant for replacement by the producer. Walsh does not represent the grower if such a situation develops. Similarly, if the product is rejected by the purchaser for not meeting quality standards, that issue is resolved between the grower and the customer without input from Walsh. Whatever agreement is reached between the grower and the customer is reflected on the invoice signed by the customer and forwarded to Walsh who has the responsibility of collecting from the customer. The grower bills Walsh for the cost of the product less Walsh's commission. The sales forming the bases for the complaints filed by Walsh with Respondent involve sales to Paul Pent, d/b/a Paul Pent Landscape Company, Dean Pent and J & W Landscape. On January 31, 1985, Walsh sold Pent three laurel oaks grown by Stewart Tree Service for a total price of $467.46 including sales tax (Ex. 2). On March 27, 1985, Walsh sold various trees and plants grown by Goochland Nurseries to J & W Landscape for a total price of $403.98 (Ex. 3). On April 22, 1985, Walsh sold two live oaks grown by Stewart Tree Service to Pent Landscape Company for a total price of $336.00 (Ex. 4). On July 3, 1985, Walsh sold various plants grown by Goochland Nurseries to J & W Landscape for a total price of $564.96 (Ex. 5). On all of these sales the producers billed Walsh for the product and were paid by Walsh. Walsh billed the customers who did not pay and Walsh filed the complaints (Ex. 8, 9 and 10), denied by Respondent on grounds Walsh was not an agent or representative of the producers. In 1976, Petitioner filed a complaint against the bond of the Ernest Corporation, a licensed dealer in agricultural products and received $5,589.20 from Respondent who recovered from the bonding company. In the complaint Walsh alleged that it was agent for Southeast Growers, Inc., selling their nursery stock throughout Florida. Respondent's witnesses could not recall what additional evidence they saw to conclude that Walsh was, in fact, an agent for the producer. However, these witnesses all testified that had they then believed Walsh was solely responsible to the producer for payment for the products sold they would not have concluded Walsh was the agent or representative of the producer. The bond on which Petitioner is attempting to recover provides that if the principal "shall faithfully and truly account for and make payment to producers, their agents or representatives, as required by Sections 604.15 - 604.30, Florida Statutes, that this obligation to be void, otherwise to remain in full force and effect." (Ex. 11 and 12)
Conclusions The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings. Section 604.21, Florida Statutes (1985) provides in pertinent part: Any person claiming himself to be damaged by any breach of the conditions of a bond or certificate of deposit, assignment or agreement given by a licensed dealer in agricultural products as herein before provided may enter complaints thereof against the dealer and against the surety, if any, to the department, which complaint shall be a written statement of the facts constituting the complaint. Section 604.15(1) , Florida Statutes (1985) provides: "Dealers in agricultural products" means any person, whether itinerant or domiciled within this state, engaged within this state in the business of purchasing, receiving, or soliciting agricultural products from the producer or his agent or representative for resale or processing for sale; acting as an agent for such producer in the sale of agricultural products for the account of the producer on a net return basis; or acting as a negotiating broker between the producer or his agent or representative and the buyer. (emphasis supplied) One of the complexities of this case which leads to some confusion is the fact that both Pent and Walsh were dealers in agricultural products as above defined. Walsh fits into the category of a person claiming himself to be damaged by a breach of any condition of the bond of Pent. However, he has the burden of showing that he is a person covered by the bond. According to the terms of the bond, coverage is provided only for "producers, their agents or representatives." Walsh is clearly not a producer in this case but claims coverage as an agent or representative. In construing "agent" or "representative" the legislative intent should be considered. The purpose of these provisions of the statute requiring licensing and bonding of dealers in agricultural products, as expressed in Section 604.151, Florida Statutes, is to protect producers from economic harm. Economic harm sustained by an agent or representative is imputed back to the principals, which in this case are the producers. An agency may be defined as a contract either expressed or implied upon a consideration, or a gratuitous undertaking, by which one of the parties confides to the other the management of some business to be transacted in the former's name or on his account, and by which the latter assumes to do the business and render an account of it. 2 Fl. Jur. 2d "Agency," Section 1. Here, Walsh was selling agricultural products on its own account, which products it was purchasing from the producers. The producer sold its product to Walsh and delivered it to the address Walsh indicated. The customer receipted for the product and the producer billed Walsh for the total cost, including transportation, to the ultimate buyer, less the 20-25 percent commission Walsh received. Walsh paid the producer and billed the customer. Whether or not Walsh collected from the customer had no bearing on the debt Walsh owed the producer for the product. It could be said that the producer was the agent for Walsh in delivering the product to the user. Even though Walsh never had actual possession of the product the sale to Walsh was complete when the producer delivered the product to the user. The entire transaction clearly is a buy-and-sell operation by Walsh and not Walsh acting as an agent for the producer. The fact that Walsh sells the producer's product does not make Walsh the agent or representative of the producer, when the producer holds only Walsh responsible to pay for the product. Nor was Walsh a representative of the producers. Representative is defined in Webster's New Collegiate Dictionary (1977 Ed.) as: "standing or acting for another esp. through delegated authority." Walsh had no delegation of authority to act for the producer. Walsh had no authority to modify the price, settle disputes, or any other function normally performed by a representative. The above interpretation of those having standing to file a complaint against a dealer in agricultural products is the same interpretation of the applicable statutory provisions that is made by Respondent. As stated in Natelson v. Dept. of Insurance, 454 So.2d 31 (Fl 1st DCA 1984): Agencies are afforded a wide discretion in the interpretation of a statute which it [sic] administers and will not be overturned on appeal unless clearly erroneous. The reviewing court will defer to any interpretation within the range of possible interpretations. (citations omitted). This interpretation limiting recovery on an agricultural bond to producers and their agents or representatives is certainly within the range of possible interpretations, especially considering the purpose of these statutory provisions to be the protection of the economic well being of the producer. From the foregoing, it is concluded that Robert J. Walsh & Company, Inc. was not the agent or representative of Goochland Nurseries and Stewart Tree Service and does not have standing to file a complaint against Dean Pent, d/b/a Pent Landscape Company, and Paul Pent, d/b/a Paul Pent Landscape Company, and their surety, Transamerica Insurance Company.
Recommendation It is recommended that a Final Order be entered dismissing the petition as contained in Petitioner's letter dated March 24, 1986. ENTERED this 14th day of July 1986 in Tallahassee, Leon County, Florida. K. N. AYERS 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 14th day of July 1986. COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Mayo Building, Room 513 Tallahassee, Florida 32301 Thomas M. Egan, Esquire Phillip Kuhn, Esquire Post Office Box 7323 Winter Haven, Florida 33883 Ronnie H. Weaver, Esquire Mayo Building, Room 513 Tallahassee, Florida 32301 Mr. Joe W. Right Bureau of Licensing & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301
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 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.
The Issue The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Oglesby Nursery, Inc., is a commercial nursery providing a variety of landscape agricultural products. The principal office for Petitioner is located at 3714 SW 52nd Avenues Hollywood, Florida. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highway, Delray Beach, Florida. Respondent, Garden of Eden, is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department. On or about August 22, 1986, Garden of Eden ordered and received delivery of $7673.40 worth of agricultural products from Petitioner. This purchase consisted of nine may pan coconuts and thirty green malayans trees. All of the trees were accepted and no issue was made as to their condition. On or about September 2, 1986, Garden of Eden ordered and received delivery of $1190.00 worth of agricultural products from Petitioner. This purchase consisted of seven coconut malayans dwarf trees. All of the trees were accepted and no issue was made as to their condition. The total amount of the agricultural products purchased by Garden of Eden from Petitioner was $8863.40. The total amount Garden of Eden paid on this account was $5000.00. The balance of indebtedness owed by Garden of Eden t o Petitioner for the purchases listed above is $3863.40. Petitioner claims it is due an additional sum of $247.77 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry and since Respondent took delivery of additional products knowing interest on past due accounts to be Petitioner's policy. No written agreement of acknowledgment executed by Garden of Eden was presented with regard to the interest claim.
