The Issue Whether the Respondent is indebted to Petitioner as alleged in the Complaint filed with the Department of Agriculture and Consumer Services.
Findings Of Fact Robert Sepos is the comptroller for Ben-Bud Growers, Inc. As such Mr. Sepos maintains the company records which document amounts owed to it by others. As to this case, Mr. Sepos presented the invoices and statements due and owing from the Respondent. Based upon the unpaid invoices, Respondent owes Petitioner the sum of $10,471.80. Respondent acknowledged that the sum of $10,471.80 is owed to Petitioner but claimed that such amount was not for the purchase of agricultural products as contemplated by Chapter 604, Florida Statutes. According to Mr. Towell the bulk of the debt owed to Petitioner is for packaging and shipping fees for produce from growers represented by Fantastic Produce. Mr. Towell maintains that packing and shipping fees are not encompassed within Chapter 604, Florida Statutes. Mr. Sepos could not verify what sum, if any, of the total amount claimed was for agricultural products (versus packing or shipping). Based upon the admissions made by Mr. Towell, Respondent owes the Petitioner for agricultural products the sum of $775.00 in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order approving Petitioner's claim in the amount of $775.00 and disallowing the remainder. DONE AND ENTERED this 7th day of November, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1997. COPIES FURNISHED: Brenda D. Hyatt, Chief Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza 01 Tallahassee, Florida 32399 Ben Litowich, President Ben-Bud Growers, Inc. 6261 West Atlantic Boulevard Margate, Florida 33063 George Towell, President George Towell Distributors, Inc. d/b/a Fantastic Produce Post Office Box 159 Belle Glade, Florida 33430 American Southern Insurance Company Legal Department 3715 Northside Parkway, 8th Floor Atlanta, Georgia 30327
Findings Of Fact Petitioner is Central Phosphates, Inc. ("CPI"), a Delaware corporation, engaged in the business of processing phosphate and manufacturing phosphate fertilizer. Petitioner rents and operates a phosphate fertilizer processing plant which is located in the vicinity of Plant City, Florida (the "Plant"). At issue in this proceeding is whether a sales tax under Section 212.05, Florida Statutes (1977), is due on the rental of the Plant. The Plant was constructed in 1974. The construction was financed in an arrangement involving CF Realty, a sister company of CPI which is wholly owned along with CPI by CF Industries, Inc. CF Realty originally purchased the equipment and other personal property that constitute the Plant from certain contractors. CF Realty then sold the Plant to Plantlease Corporation ("Plantlease"), a New York for profit corporation. Plantlease is a wholly owned subsidiary of Morgan Guarantee Company, a New York lending institution. Plantlease was organized solely and specifically to acquire title to the Plant and to lease the Plant back to CPI, which would operate the Plant. Plantlease paid for the Plant by assuming CF Realty's indebtedness on the construction loan and by paying some additional cash. Plantlease then leased the Plant to CPI for an initial term of 15 years. At the end of this initial term CPI has the right to elect to extend the lease for an additional two years or it may elect to purchase the Plant from Plantlease. At the end of the first extended term, CPI has the option of renewing the lease for a second renewal term of two years, or purchasing the Plant. If the lease is extended to the full 19 years, CPI is entitled to purchase the Plant at the end of that term. CPI makes quarterly rental payments to Plantlease pursuant to the lease. Since the first payment of rent in May, 1975, CPI has also been paying to Plantlease a sales tax of four percent of the amount of each payment pursuant to Section 212.05, Florida Statutes (1977). Plantlease, in turn, has remitted these payments to the Florida Department of Revenue with which it has registered as a dealer. Plantlease, as a potential claimant of a refund of the allegedly erroneously paid rental tax, has waived its right to a refund as reflected in its letter dated May 4, 1978, to the Florida Department of Revenue. Since May, 1975, CPI has paid sales taxes into the State Treasury in the amount of $861,322.55 which rental tax along with all other rental tax payments paid on the Plant since May, 1978, would be refunded if CPI were not liable for the rental tax. On May 8, 1978, CPI filed an Application for Refund with the Comptroller's Office of the State of Florida seeking a refund of the amount allegedly erroneously paid by CPI to the State Treasury and giving reasons for the claim for a refund. CPI bases its claim for a refund on the grounds that the Plantlease rental of the Plant to CPI constitutes an occasional or isolated sales transaction under Section 212.02 (9), Florida Statutes (1977). By letter dated May 30, 1978, the Comptroller's Office denied CPI's Application for Refund and determined that CPI's transaction with Plantlease was not exempt from Section 212.05, Florida Statutes (1977), and the regulations pursuant thereto. On or about July 7, 1978, CPI timely filed a Petition for a Section 120.57(1), Florida Statutes (1977), hearing on the issue of whether, for aforementioned reasons, a refund was due on the sales tax paid on the Plant. By application dated May 9, 1975, and received by respondent on May 12, 1975, Plantlease applied to respondent for a certificate of registration to engage in or conduct business as a dealer. Item 10 on the form application calls for "Type of Business." In the blank provided, Plantlease's agent has supplied "Rental of personal property." Underneath the blank, in parentheses, are examples of types of businesses, "Grocery, hardware, jewelry " Exhibit A-I, attached to Joint Exhibit No. 2. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for refund. DONE and ENTERED this 12th day of January, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 APPENDIX Except for the final paragraph, the findings of fact in the recommended order are based on the parties' stipulation, which was received as joint exhibit No. 2. Paragraphs one, two, three, five, nine and ten of petitioner's proposed findings of fact have been adopted in toto. The first sentence of paragraph four of petitioner's proposed findings of fact has been rejected as not being supported by the evidence. The second sentence has been adopted, in substance. Paragraph six of petitioner's proposed findings of fact has been adopted except for the second sentence, which is actually a proposed conclusion of law. Paragraph seven of petitioner's proposed findings of fact has been adopted, in substance. Paragraph eight of petitioner's proposed findings of fact has been adopted except for the second sentence, which is actually a proposed conclusion of law. Paragraphs eleven and twelve of petitioner's proposed findings of fact have been rejected as contrary to the evidence. COPIES FURNISHED: Charles Alvarez, Esquire Gary P. Sams, Esquire Mahoney, Hadlow & Adams Post Office Box 5617 Tallahassee, Florida 32301 Linda C. Procta, Esquire Harold F. X. Purnell, Esquire Assistant Attorneys General The Capitol, Room LL04 Tallahassee, Florida 32304
The Issue Whether Respondent is indebted to Petitioners for agricultural products and, if so, in what amount?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties Petitioners are producers and sellers of tomatoes. They own and operate Sunfresh Farms in Florida City, Florida. Respondent is a dealer in agricultural products. The Controversy The instant case involves two separate transactions involving the sale of tomatoes pursuant to verbal agreements between Petitioners (as the sellers) and Respondent (as the buyer). Both transactions occurred in January of 1995. The First Transaction (Petitioners' Invoice Number 5270) Under the terms of the first of these two verbal agreements (First Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 96 boxes of cherry tomatoes for $12.65 a box (which was the market price at the time). In accordance with the terms of the First Agreement, Petitioners delivered 96 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 23, 1995. Respondent accepted the delivery. Respondent sold these 96 boxes of cherry tomatoes to a local produce house, which subsequently sold the tomatoes to another local produce house. The tomatoes were eventually sold to a company in Grand Rapids, Michigan. On January 28, 1995, five days after Petitioners had delivered the 96 boxes of cherry tomatoes to Respondent, the tomatoes were inspected in Grand Rapids, Michigan. According to the inspection certificate, the inspection revealed: "Decay (3 to 28 percent)(mostly early, some advanced stages);" "Checksum;" and "Average approximately 85 percent light red to red." Petitioners have yet to be paid any of $1,214.40 Respondent owes them (under the terms of the First Agreement) for the 96 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the agreement. The Second Transaction (Petitioners' Invoice Number 5299) Under the terms of the second verbal agreement at issue in the instant case (Second Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 132 boxes of ("no grade") cherry tomatoes for $12.65 a box. In accordance with the terms of the Second Agreement, Petitioners delivered 132 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 27, 1995. Respondent accepted the delivery. Respondent sold 84 of these 132 boxes of cherry tomatoes to a Florida produce house, which subsequently sold the tomatoes to a company in Houston, Texas. These 84 boxes of cherry tomatoes were inspected in Houston, Texas, on January 31, 1995, four days after Petitioners had delivered them to Respondent. The defects found during the inspection were noted on the inspection certificate. Petitioners have yet to be paid in full for the 132 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the Second Agreement. Respondent tendered payment (in the form of a check) in the amount of $811.20, but Petitioners refused to accept such payment because it did not represent the full amount ($1,669.80) Respondent owed them (under the terms of the Second Agreement) for these cherry tomatoes. (Although they have not endorsed or cashed the check, Petitioners are still holding it in their possession.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding that Respondent is indebted to Petitioners in the amount of $2,884.20, (2) directing Respondent to make payment to Petitioners in the amount of $2,884.20 within 15 days following the issuance of the order, (3) indicating that the $811.20 check that was previously tendered to Petitioners by Respondent (and is still in Petitioners' possession) will be considered partial payment of this $2,884.20 indebtedness, if Respondent advises Petitioners, in writing, that it desires the check to be used for such purpose and if it provides Petitioners written assurance that the check is still a valid negotiable instrument; and (4) announcing that if payment in full of this $2,884.20 indebtedness is not timely made, the Department will seek recovery from the Farm Bureau, Respondent's surety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of February, 1996. STUART M. LERNER, 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 2nd day of February, 1996.
Findings Of Fact The area of dispute involves an alleged insufficiency of payment of documentary stamp tax and documentary surtax, and associated penalties for the insufficiencies, in transactions which are reflected in the Exhibit "C" to the Petition. The parties did not dispute the accuracy of the computation found in the Exhibit "C" to the petition, which was prepared by an investigator of the Respondent. The Petitioner contends that he is only responsible for paying the amount of documentary stamp tax and documentary surtax on the value of the real estate which was conveyed to the several grantees shown in Exhibit "C", as opposed to paying documentary stamp tax and documentary surtax on the value of the real estate, together with the value of the home which was built on that real estate. The facts show that the Petitioner has only paid documentary stamp tax and documentary surtax on the value of the real estate which he conveyed to the several grantees in Exhibit "C". In describing the arrangement between the Petitioner and his wife with the several grantees, The Petitioner and Respondent stipulated that Petitioner's Exhibit #1 accurately represents the documents involved in the initial contact between the Petitioner and the grantee. The Petitioner's Exhibit #1 is a composite exhibit which shows a blank sales contract and installment contract prepared by the Petitioner, together with a copy of an executed sales contract and installment contract in behalf of one of the several grantees. This document has as its function providing a rough estimate in behalf of the parties on the question of the cost of a lot and home, together with the attendant tangible property items that go with the sale. This document is subject to the special conditions of the Farmers Home Administration of the United States Department of Agriculture and is not binding on the grantee. The parties stipulated that Petitioner's Exhibit #2, a composite exhibit, was utilized in the case of the several grantees in this matter. The Petitioner's Exhibit #2 is a construction contract in blank form and a form as executed in behalf of one of the grantees. This construction contract is prepared by the Farmers Home Administration, United States Department of Agriculture. This construction contract identifies the price and contains a general description of the lot which was sold by the Petitioner, and is executed after the grantee has met with the Farmers Home Administration and been approved for a loan. Prior to the execution of the construction contract, the grantees came to the place of business of the Petitioner, which is an office in the back of his home. This meeting was not pursuant to any advertising other than communication by other parties who had sought the services of Jerry W. Thomas, who is a general contractor, certified by the Farmers Home Administration to build homes which the Farmers Home Administration is financing. The grantee would come to Mr. Thomas's office and discuss the construction of a home, and, in the case of the grantees in Petitioner's Exhibit "C", it is contemplated that that home would be built on a lot which Mr. Thomas and his wife owned and would convey to the grantee. In fact, in every instance reflected in Exhibit "C" the home was constructed by Mr. Thomas and was constructed on a lot which Mr. Thomas and his wife sold to the grantee. Before the construction contract was signed, it was necessary for the grantee to be approved for financing by the Farmers Home Administration. It was also necessary under the system that was utilized in financing the matters set forth in the Exhibit "C", that the Petitioner sign an irrevocable option to purchase realty, which was executed in favor of the several grantees. A replica of this form is made a part of the record as Petitioner's Exhibit #4. The meaning of the option to purchase real property, was that the Petitioner stated a price for his real estate and he was bound by that price and must sell the real estate to the grantee, whether or not the Petitioner ever built a home on the real estate. This option to purchase real property was a precondition to the overall financing scheme which was utilized by the Farmers Home Administration. This particular method was identified as a contract method. Should the appraisal of the property as conducted by the Farmers Home Administration indicate that the asking price stated in the option to purchase real property was in excess of the appraised value, then the Petitioner could have refused to sell. In the case of all the grantees found in Exhibit "C", the price stated for the real property was acceptable and the contract was consummated. The technique for executing the contract conditions once the option to purchase real property had been completed and accepted was as follows: A closing was held at which point a warranty deed was executed by the Petitioner and his wife in favor of the several grantees. Payment for the real estate was made from a supervised account in behalf of the several grantees. The warranty deed, which form is shown in Petitioner's Exhibit #3 and is stipulated as being the form utilized in all conveyances alluded to in Petitioner's Exhibit "C" was then recorded. At the moment of recording, documentary stamp tax and documentary surtax was paid on the amount of the real property only. On the day that the warranty deed was recorded, a mortgage and note was also recorded in favor of the Farmers Home Administration for the amount financed by the grantees. Subsequent to the closing alluded to in paragraph one and two of this explanation, the grantee, at his option, had the home constructed. The option referred to, pertains to the ability to hire any contractor that he desired to construct the home on the property which had been conveyed to him. The Petitioner would not have had the right to oppose the grantees' choice of contractor. Had the several grantees desired to choose other contractors, then the Petitioner would have been required to sell his real estate at the option price and that would have concluded the contract. In all cases shown in the Exhibit "C" to the petition, Mr. Thomas not only conveyed the property but constructed the homes on the property as the chosen contractor and was paid out of the supervised account through scheduled payments and a final disbursement made at the 100 percent completion point. Subsequent to the time that the warranty deed conveying the lot, together with the mortgage and note, were recorded, an audit was performed by the Respondent and an assessment placed for the additional value reflected in the the cost of constructing the home. This assessment was for the unpaid documentary stamp tax, documentary surtax and penalties associated with those deficiency assessments.
Findings Of Fact Robert Sepos is the comptroller for Ben-Bud Growers, Inc. As such Mr. Sepos maintains the company records which document amounts owed to it by others. As to this case, Mr. Sepos presented the invoices and statements due and owing from the Respondent. Based upon the unpaid invoices, Respondent owes Petitioner the sum of $2,626.00. Respondent acknowledged that the sum of $2,626.00 is owed but claimed that such amount was not for the purchase of agricultural products as contemplated by Chapter 604, Florida Statutes. According to Mr. Towell the bulk of the debt owed to Petitioner is for packaging and shipping fees for produce from growers represented by Fantastic Produce. Mr. Towell maintains that packing and shipping fees are not encompassed within Chapter 604, Florida Statutes. Mr. Sepos could not verify what sum, if any, of the total amount claimed was for agricultural products (versus packing or shipping). Based upon the admissions made by Mr. Towell, Respondent owes the Petitioner for agricultural products the sum of $347.25 in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order approving Petitioner's claim in the amount of $347.25 and disallowing the remainder. DONE AND ENTERED this 7th day of November, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1997. COPIES FURNISHED: Brenda D. Hyatt, Chief Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza 01 Tallahassee, Florida 32399 Ben Litowich, President Ben-Bud Growers, Inc. 6261 West Atlantic Boulevard Margate, Florida 33063 George Towell, President George Towell Distributors, Inc. d/b/a Fantastic Produce Post Office Box 159 Belle Glade, Florida 33430 American Southern Insurance Company Legal Department 3715 Northside Parkway, 8th Floor Atlanta, Georgia 30327
Findings Of Fact At all times pertinent to this proceeding, Respondent was a registered farm labor contractor whose Social Security number is 266-30-9569. Respondent worked as a farm labor contractor only during the potato season which usually begins in March or April. Therefore, Respondent did not apply for certification as a farm labor contractor until March 31, 1986 even though his previous certification as a farm labor contractor had expired on December 31, 1985. There was credible evidence that Respondent had been using a 1968 Chevrolet vehicle to transport farm workers which carried a valid inspection sticker and was covered by Respondent's liability insurance. The 1968 Chevrolet "broke down" and was replaced by a 1974 Dodge Van on May 6, 1986 which had passed inspection on May 6, 1986 and added to Respondent's liability insurance policy on the same date. There was credible evidence that a valid inspection certificate and insurance certificate for the 1974 Dodge Van had been furnished to Petitioner's local office in Palatka on May 1986 but was not received in Petitioner's Tallahassee Office where the official files are maintained until a later date. On May 6, 1986, Respondent was cited for failure to have the 1974 Dodge Van properly insured and inspected. There were other violations cited but the Petitioner resolved those in favor of Respondent. There was credible evidence that Respondent had operated as a farm labor contractor for a substantial number of years without being cited for any violations under the Farm Labor Registration Law, Chapter 450, Part III, Florida Statutes. Respondent is a farm labor contractor as that term is defined in Section 450.2(1), Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, enter a Final Order dismissing all charges filed against the Respondent. Respectfully submitted and entered this 9th day of July, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 9th day of July, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Security Tallahassee, Florida 32301 Willis Glover 21 North Main Street Crescent City, Florida 32012 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue Whether Respondent, Sergmar, Inc., owes Petitioner, Zamia Corporation, d/b/a Landscaper's Choice, $674.07 for the sale of landscaping plants.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner operates a landscape supply company that produces plants, among other landscaping supplies, at a location in Naples, Florida. Respondent Sergmar is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. At the time of the transactions in question, Sergmar was licensed as a dealer in agricultural products supported by a surety bond in the amount of $4,999 provided by the Hartford Fire Insurance Company. Between February 21, 2002, and March 29, 2002, Petitioner sold Sergmar nursery plants and trees produced by Petitioner. As of March 29, 2002, the balance owed Petitioner by Sergmar was $7,498.04. As of April 30, 2002, finance charges had increased the balance to $7,676.01. Sergmar began attempting to pay down the balance in May and June 2002. Sergmar made one valid payment of $500 during this period. However, other Sergmar checks in partial payment of the balance were returned for insufficient funds three times during this period. On June 24, 2002, Petitioner filed a Producer Complaint with the Department, seeking an order that Sergmar be directed to pay an adjusted balance of $6,182.23. Petitioner arrived at the "adjusted balance" by writing off some items and eliminating finance charges from its claim. As of June 24, 2002, Sergmar actually owed Petitioner a total balance of $6,997.17. On or about July 25, 2002, Sergmar filed an Answer admitting the debt. Sergmar's letter stated: "We fully intend to pay for it. We are trying to collect outstanding invoices. We request 60 days to settle [the] balance." By letter dated August 1, 2002, Petitioner notified the Department that it had entered a proposed settlement plan with Sergmar and that it agreed with Sergmar's request to abate the proceeding. On August 2, 2002, the Department placed the case in abeyance to provide the parties an opportunity to settle the issue. By letter dated August 21, 2002, Petitioner notified the Department that it had received no money from Sergmar pursuant to the settlement plan, and that it wished to resume processing of its Producer Complaint. By order dated September 12, 2002, the Department ordered Sergmar to pay Petitioner the amount of $6,182.23 within 15 days of the date the order became final. While Petitioner's claim was pending, service charges continued to accumulate on the principal balance. By August 31, 2002, Sergmar owed Petitioner $7,635.30. On September 6, 2002, before the Department entered its order, Sergmar presented Petitioner with a cashier's check for $7,000. By letter faxed to the Department on September 17, 2002, Petitioner stated that Sergmar had made a partial payment of the balance but that it still owed $635.30 to Petitioner. The letter requested that the Department "continue the complaint for the balance owed." By letter to the Department dated September 24, 2002, Sergmar objected to the request that the claim against its surety bond remain open. Sergmar admitted that it still owed $635.30 to Petitioner, and stated that it intended to pay off that amount over the next two months. However, Sergmar also noted that Petitioner's Producer Complaint requested $6,182.23 and that Sergmar had paid Petitioner $7,000. Sergmar contended that the $7,000 payment more than satisfied the amount requested in the Producer Complaint and that the Department should therefore close the proceeding against Sergmar's surety bond.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter its final order finding that Respondent, Sergmar, Inc. has satisfied the Department's Order, dated September 12, 2002, that it pay $6,182.23 to Zamia Corporation, d/b/a Landscaper's Choice, and that no further action on the Producer Complaint filed by Zamia Corporation is necessary. DONE AND ENTERED this 7th day of February, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2003. COPIES FURNISHED: Sergio Birsa, Director Sergmar, Inc. 2881 Santa Barbara Boulevard Naples, Florida 34116 Marian Birsa, Agent Sergmar, Inc. 2881 Santa Barbara Boulevard Naples, Florida 34116 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture 407 South Calhoun Street, Mail Station 38 Mayo Building Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Charles Minor, Registered Agent Hartford Fire Insurance Company Hartford Plaza Hartford, Connecticut 06115 Ronald L. Torp, Jr., President Zamia Corporation 218 Sabal Palm Road Naples, Florida 34114
The Issue The issue in this case is whether Petitioner, Greg Davenport Enterprises, Inc., d/b/a Container Grown, is entitled to payment from an Agricultural Bond issued to Respondent, A.W. Kelley’s Gardens, Inc., and, if so, the amount owed to Petitioner.
Findings Of Fact Petitioner is a licensed producer of an agricultural product: Nursery plants and flowers. Petitioner is duly incorporated by the State of Florida and is in good standing. Greg Davenport is listed as Director and President of the corporation in the Division of Corporations’ web-based records. Respondent is a duly incorporated Florida corporation. Its business address is 6901 Hendry Creek Drive, Ft. Myers, Florida. The directors of the corporation are listed as Dixie Kelley, Drew Kelley, and Kent Kelley. Respondent is a plant retail business. Respondent has been a customer of Petitioner for many years, going back as far as 2006 according to evidence submitted at final hearing. During that time, Respondent has purchased approximately $91,000.00 worth of goods from Petitioner. (In its PRO, Respondent says the relationship goes back 25 years or more, but there was no sworn testimony to that effect.) During the period March 22 through May 24, 2012, Respondent ordered numerous items from Petitioner for which he was billed in accordance with standard practices. The following invoices provide the invoice number, date of invoice, and amount of purchase: Invoice 1399 - March 22, 2012 - $1,570.00 Invoice 1818 – March 27, 2012 - $2,105.00 Invoice 1391 – April 10, 2012 - $1,130.00 Invoice 1303 – April 25, 2012 - $ 850.00 Invoice 1419 – May 16, 2012 - $1,145.00 Invoice 1431 – May 24, 2012 - $1,175.00 TOTAL - $7,975.00 Petitioner contacted Respondent on numerous occasions to request payment on the outstanding invoices. Those efforts were in vain. At first, Respondent would make empty promises to pay, but ultimately just refused to accept Petitioner’s calls. Meanwhile, Respondent’s owner relocated to North Carolina, causing Petitioner to fear that payment may never be forthcoming. Respondent made some promises to make payments “whenever he could” to satisfy the debt. He said, however, that even if he could not pay, Petitioner should not attach his agriculture bond. Respondent’s failure to make any promised payments was the basis for Petitioner seeking payment by way of the bond. Respondent does not deny his failure to pay the outstanding invoices. He does not dispute that the products he received were of acceptable quality. He does, in fact, admit his indebtedness to Petitioner. Respondent does not feel his bond should be attached for payment of this debt. He cites, as reasons, that: 1) his business suffered during the national financial crisis; 2) there was some embezzlement going on in his business that affected his ability to pay obligees; 3) there is a related civil lawsuit underway in circuit court relating to the embezzlement; and 4) Davenport and Kelley have been friends for a long time and thus he should be allowed more time to pay the invoices. Respondent’s PRO sets forth other bases for why he believes it would be improper to attach his agriculture bond. However, none of those bases was addressed by sworn witnesses at final hearing and are thus not evidence in this case. Further, Respondent contends that two witnesses he subpoenaed but failed to show up for final hearing prejudiced his case. He did not prove, however, that either of the supposed witnesses had been properly served. Respondent’s PRO also sets forth facts not elicited through testimony or documentary evidence during final hearing. Respondent relies in part on various documents exchanged between the parties during discovery, but none of those were offered into evidence and thus are not part of the record. Respondent acquired a bond through Suretec Insurance Company. The amount of the bond was not disclosed at final hearing but, per statute, must be at least $5,000.00. The surety company was not represented at final hearing. No defense was raised by the surety company concerning Petitioner’s attempt to attach the bond. Petitioner is entitled to payment in the amount of $7,975.00 for the products it provided to Respondent. Besides the amount set forth above, Petitioner claims the sum of $100.00 paid for the filing of his two claims against Respondent’s bond. The total sum owed to Petitioner by Respondent is $8,075.00.
Recommendation Based upon the findings of fact and conclusions of law set forth above, it is hereby RECOMMENDED that: Respondent shall pay to Petitioner, within 15 days of the entry of the Final Order, the sum of $8,075.00; If Respondent fails to timely make the aforementioned payment, the Department shall call upon Suretec Surety Company to pay over to the Department the full amount of Respondent’s bond; and The Department shall then turn the proceeds of the bond over to Petitioner to satisfy the debt that has been established. DONE AND ENTERED this 26th day of March, 2013, in Tallahassee, Leon County, Florida. S 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 26th day of March, 2013. COPIES FURNISHED: Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Michael Cronin SureTec Insurance Company Suite 320 9737 Great Hills Trail Austin, Texas 78759 Greg Davenport Greg Davenport Enterprises, Inc. d/b/a Container Grown 613 Corbel Drive Naples, Florida 34110-1106 Kent O. Kelley A. W. Kelley’s Gardens Inc. 6901 Hendry Creek Drive Fort Myers, Florida 33908 Lorena Holley, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Adam Putnam Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issue is whether Smallwood Design Group/Smallwood Landscape, Inc. (Respondent), and its surety, Hartford Fire Insurance Company, owe funds to American Farms, LLC, (Petitioner) for the sale of agricultural products.
Findings Of Fact At all times material to this case, the Petitioner was a licensed agricultural producer in the State of Florida. At all times material to this case, the Respondent was a licensed agricultural dealer in the State of Florida. From May 30 through October 27, 2006, the Respondent purchased agricultural products, specifically foliage plants, from the Petitioner. All charges for the plants sold by the Petitioner to the Respondent were billed on invoices that were sent to the Respondent by the Petitioner. The quantities and prices of the delivered plants were clearly identified on the invoices. The Respondent has failed to pay invoices totaling $11,777.18 that were sent by the Petitioner to the Respondent. There is no evidence that any of the charges were disputed by the Respondent at the time the sales were invoiced. There is no evidence that any of the plants sold by the Petitioner to the Respondent were unsatisfactory in terms of price or quality. As required by law, the Respondent had in place an Agricultural Products Dealer Bond dated December 9, 2005. The bond was executed by Joann Smallwood as "principal" for the Respondent. The bond was effective for one year and included the time period relevant to this proceeding. In correspondence filed during the course of this proceeding, the Respondent asserted that Joann Smallwood sold the business to another owner during the time relevant to this proceeding. The evidence established that at all times material to this case, Joann Smallwood acted as the owner/manager of the business. The plants sold by the Petitioner to the Respondent were picked up by trucks with Smallwood logos and signage. There was no evidence that the Petitioner was ever advised during the time the Respondent was purchasing plants from the Petitioner that Joann Smallwood had sold the business or that the Respondent would not be liable for payment of products purchased from the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order directing that the Respondent pay the total of $11,777.18 to the Petitioner (plus the filing fee paid by the Petitioner to the DACS) and establishing such other procedures as are necessary to provide for satisfaction of the debt. DONE AND ENTERED this 3rd day of August, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2007.
