The Issue The issues for determination in this case are whether Respondent is indebted to Petitioner for the purchase of agricultural products, and whether such indebtedness constitutes a breach of the conditions of the bond posted by the Surety for which payment should issue.
Findings Of Fact Petitioner, DONNIS A. BARBER and KATHLEEN BARBER, d/b/a PEACE RIVER GROWERS (PEACE RIVER GROWERS), is a producer of agricultural products, primarily nursery ornamental plants, located in Zolfo Springs, Florida. Donnis A. Barber is an owner of PEACE RIVER GROWERS. Respondent, TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING (GULF BREEZE), is a licensed dealer in agriculture products, holding license number 10091, issued by the Department of Agriculture and Consumer Services. At all material times, David Joy was the manager of GULF BREEZE. Co-Respondent and Surety, FRONTIER INSURANCE COMPANY OF NEW YORK (FRONTIER), posted Bond Number 5004806 in the amount of $9,999.00 in support of Respondent's license as a dealer in agricultural products. The inception date of the bond was April 30, 1996, and the expiration date of the bond was April 30, 1997. Prior to 1997, Petitioner PEACE RIVER GROWERS had sold agriculture products to GULFBREEZE for several years. GULF BREEZE would, in the usual course of business, order products by telephone which would be delivered by PEACE RIVER GROWERS with payment in full due at the time of delivery. GULF BREEZE changed ownership in 1996. Under its new ownership and manager David Joy, GULF BREEZE continued to order and receive agricultural products from PEACE RIVER GROWERS in 1997. GULF BREEZE, for several transactions in 1997, paid in full for the delivered agricultural products. On four business transactions in 1997 GULF BREEZE failed to pay for the agricultural products received from PEACE RIVER GROWERS at the time of delivery. Specifically, on February 26, 1997, PEACE RIVER GROWERS delivered products to GULF BREEZE valued at $831.20; on March 7, 1997, PEACE RIVER GROWERS delivered products valued at $857.50; on March 11, 1997, PEACE RIVER GROWERS delivered products valued at $425.00; and on April 4, 1997, PEACE RIVER GROWERS delivered products valued at $945.00. The total value of the agricultural products delivered by PEACE RIVER GROWERS to GULF BREEZE on these four occasions is $3,058.70. At the time of each of these four deliveries, PEACE RIVER GROWERS was informed by an employee of GULF BREEZE that the manager, David Joy, was not present, but that payment by check would be mailed. Upon failing to receive payment the delivery of April 4, 1997, PEACE RIVER GROWERS ceased making deliveries of agricultural products to GULF BREEZE. After several demands for payment by PEACE RIVER GROWERS, GULF BREEZE on May 27, 1997, remitted $200.00 to PEACE RIVER GROWERS, which amount was applied to a January 17, 1997, delivery, and which is not at issue in these proceedings. GULF BREEZE failed to properly make payment for agricultural products delivered by PEACE RIVER GROWERS and is indebted to SARASOTA GROWERS in the amount of $3,058.70.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered directing Respondent TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING, to pay Petitioner DONNIS A. BARBER, d/b/a PEACE RIVER GROWERS $3,058.70 for agricultural products sold to Respondent, and in the event Respondent fails to make such payment, within fifteen (15) days of that order, that the Surety be required to pay pursuant to the bond posted. DONE AND ENTERED this 14th day of November, 1997, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1997. COPIES FURNISHED: Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399 Donnis A. Barber, Owner Peace River Growers Highway 66 East Post Office Box 780 Zolfo Springs, Florida 33890 Toulia Xioutas, Incorporated Gulf Breeze Landscaping 901 MacEwen Drive Osprey, Florida 34229 Frontier Insurance Company of New York 195 Lake Louise Marie Road Rock Hill, New York 12775-8000
The Issue Whether Respondent Quality By Design, Inc. (QBD) owes Petitioner $2,166.75, or some lesser amount, for 45 Washingtonia Palms it purchased from Petitioner in June 2009.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a producer of Washingtonia Palms and other trees. It grows these agricultural products on its 140-acre tree farm located in Moore Haven, Florida. The farm utilizes a ditch/canal irrigation system. In June 2009, Petitioner received two separate orders from QBD for a total of 45 Washingtonia Palms, ten-to-14 feet in overall height: a June 16, 2009, order for 27 trees (Invoice 1081); and a June 24, 2009, order for 18 trees (Invoice 1083). For both orders, the agreed-upon purchase price was $45.00 per tree. Accordingly, the amount due, including sales tax (of $85.05), for the trees ordered on June 16 was $1,300.05, and the amount due, including sales tax (of $56.70), for the trees ordered on June 24 was $866.70. QBD took delivery of the trees at Petitioner's tree farm. David Lindsey and Buddy Ward were the truck drivers dispatched by QBD to Petitioner's tree farm to take delivery of the trees. Mr. Lindsey picked up the 27 trees that had been ordered on June 16. Mr. Ward picked up the 18 trees that had been ordered on June 24. Petitioner readied the trees for delivery before they were picked up. Among the things it did as part of the preparation process was to wrap the root ball of each tree in plastic sheeting to retain moisture. After arriving at Petitioner's tree farm, Mr. Lindsey and Mr. Ward each inspected the trees Petitioner had readied for pick up and accepted them on behalf of QBD (Mr. Lindsey by signing Invoice 1081, and Mr. Ward by signing Invoice 1083). After being inspected and accepted, the trees were loaded onto Mr. Lindsey's and Mr. Ward's semi-trailer trucks and transported to QBD's tree farm in Umatilla Florida, approximately five hours away (by truck). Each of the 45 trees was in excellent condition when loaded. Mr. Lindsey's trip to QBD's tree farm was uneventful. Mr. Ward, on the other hand, was not so fortunate. As he was leaving Petitioner's property, he drove his semi-trailer truck into a ditch while making a turn. Mr. Ward was not seriously injured, and none of the trees fell off the trailer bed as a result of the mishap. A tow truck was called to the scene. Within 15 minutes of the tow truck's arrival, Mr. Ward's truck was pulled out of the ditch and he "went on [his] way," with his load of 18 Washingtonia Palms. The morning after they arrived at QBD's tree farm, the trees on Mr. Lindsey's and Mr. Ward's trucks were offloaded and "watered down." They were then put in the ground. Subsequently, fronds on each of the trees "turned brown." QBD was able to "rehabilitate" the trees by cutting off the outside row of fronds on each tree and "re-tying the heads." The labor cost of this "rehabilitation" work was $13.50 per tree. The QBD employees who did the work used a piece of equipment that QBD rented at the rate of approximately $75.00 per hour. At no time prior to the initiation of the instant litigation did QBD notify Petitioner that any of the 45 trees it had purchased was defective or non-conforming, nor did it seek to revoke its acceptance of the trees or to return the trees to 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 (1) finding that QBD is indebted to Petitioner in the amount of $2,166.75 for the 45 Washingtonia Palms it purchased from Petitioner in June 2009; (2) directing QBD to make payment to Petitioner in the amount of $2,216.75 ($2,166.75, plus $50.00 for reimbursement of the filing fee Petitioner paid) within 15 days following the issuance of the order; (3) providing that Petitioner, upon receipt of this payment, shall remit $141.75 to the appropriate taxing authority; and (4) announcing that if QBD fails to make timely payment in full, the Department will seek recovery from OCIC, QBD's surety. DONE AND ENTERED this 14th day of April, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 14th day of April, 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
Findings Of Fact Upon consideration of the oral testimony and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, Petitioners were producers of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983). At all times pertinent to this proceeding, Respondent GMS was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license no. 936 by the Department and bonded by Commercial Union Insurance Company (Commercial) in the sum of $50,000.00 - Bond No. CZ 7117346. At all times pertinent to this proceeding, Respondent Commercial was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). Prior to Petitioners selling or delivering any watermelons (melons) to Respondent GMS, Petitioners and Respondent GMS entered into a verbal contract whereby: (a) Petitioners would harvest and load their melons on trucks furnished by Respondent GMS at Petitioners' farm; (b) the loading, grading and inspection, if any, was to be supervised by, and the responsibility of Respondent GMS or its agent; (c) the melons were to be U.S. No. 1 grade; (d) the melons were purchased F.O.B. Petitioner's farm subject to acceptance by Respondent GMS, with title and risk of loss passing to Respondent GMS at point of shipment (See Transcript Page 95 lines 5-7); (e) the price was left open subject to Petitioners being paid the market price for the melons at place of shipment on the day of shipment as determined by Respondent GMS less one (1) or two (2) cent sales charge, depending on the price; and requiring Respondent GMS to notify Petitioners on a daily basis of that price and; (f) the settlement was to be made by Respondent GMS within a reasonable time after the sale of the melons by Respondent GMS. Respondent GMS was not acting as Petitioners agent in the sale of the melons for the account of the Petitioners on a net return basis nor was it acting as a negotiating broker between the Petitioners and the buyers. Respondent GMS did not make the type of accounting to Petitioners as required by Section 604.22, Florida Statutes had it been their agent. Although Respondent GMS purchased over twenty (20) loads of melons from the Petitioners, there are only ten (10) loads of melons in dispute and they are represented by track report numbers 536 dated April 29, 1985, 534 dated April 30, 1985, 2363 and 537, dated May 1, 1985, 2379, 2386 and 538 dated May 2, 1985, and 2385, 2412 and 2387 dated May 3, 1985. Jennings W. Starling (Starling) was the agent of Respondent GMS responsible for loading; grading- inspecting and accepting and approving the loads of melons for shipment that Respondent GMS was purchasing from Petitioners during the 1985 melon season. Petitioners and Starling were both aware that some of the melons had hollow hearth a conditions if known, would cause the melons to be rejected. Aware of this condition in the melons, Starling allowed Petitioners to load the melons on the truck furnished by Respondent GMS. Starling rejected from 20 percent to 40 percent of the melons harvested and brought in from Petitioners' fields before accepting and approving a load for shipment. Starling accepted and approved for shipment all ten (10) of the disputed loads of melons. On a daily basis, Robert E. McDaniel, Sr., one of the Petitioners, would contact the office of Respondent GMS in Lakeland Florida to obtain the price being paid that day by Respondent GMS to Petitioners but was not always successful, however, he would within a day or two obtain the price for a particular day. Robert E. McDaniel did obtain the price to be paid by Respondent GMS for the ten (10) disputed loads and informed his son Robert E. McDaniel, Jr. of those prices. The prices quoted to Robert E. McDaniel, Sr. by Respondent GMS on the ten (10) disputed loads were 12 cents, 10 cents, 8 cents, 8 cents, 8 cents, 8 cents, 8 cents, 7 cents, 7 cents, and 7 cents on tract reports number 536, 534, 2363, 537, 2379, 2386, 538, 2385, 2412 and 2387, respectively. No written record of their prices was produced at the hearing but the testimony of Robert E. McDaniel Sr. concerning these prices was the most credible evidence presented. After the melons were shipped, sometimes as much as one week after, a track report was given to Robert E. McDaniel Jr. by Starling for initialing. Sometimes a price would be indicated on the track report but this price was based on selling price at point of destination and not the market price at point of shipment. Also, the letters "H.H." would also appear on the track report which, according to the testimony of Starling, indicated hollow heart but the evidence was insufficient to prove that Starling had rejected these loads for shipment because of a hollow heart condition in the melons. The loads in question were paid for by Respondent GMS based on a price at point of destination under its drafts no. 831912 and 851311. The amount in dispute is as follows: DATE TRACK NET AMOUNT AMOUNT SHIPPED
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent GMS be ordered to pay to the Petitioners the sum of $11.212.31. It is further RECOMMENDED that if Respondent GMS fails to timely pay the Petitioners as ordered, then Respondent Commercial be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioners in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 13th day of June, 1986, in Tallahassee, Leon County, Florida. Hearings Hearings WILLIAM R. CAVE Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative this 13th day of June, 1986.
The Issue Whether Respondent, FYV, Inc., d/b/a Miami Tropical Nursery, Inc. (Respondent or Buyer), owes Petitioner, Bud Sod, LLC (Petitioner or Seller), the sum of $7,168.09 for pallets of sod sold to the Buyer by the Seller.
Findings Of Fact At all times material to the instant case, Petitioner and Respondent were involved in the purchase and sale of an agricultural product grown and delivered in Florida. Under the terms of their on-going business relationship, Petitioner supplied Respondent with sod. There is no disagreement that Petitioner produced and sold the sod to Respondent. In fact, the parties had numerous dealings that covered many tickets noting deliveries and invoices noting the monies owed. Prior to July 7, 2010, the parties met without their attorneys to try and agree upon an amount owed by Respondent. At that time, they went through the volumes of paperwork related to the claim and reached a mutually-acceptable decision. Petitioner maintains that Respondent owes $17,168.09 as a compromised sum for the sod sold by Petitioner to Respondent. Of that amount, Petitioner acknowledges that Respondent remitted $10,000 to the Seller. Accordingly, Petitioner asserts that the sum of $7,168.09 is owed and unpaid for the sod purchased by Respondent. Respondent presented no evidence to refute this amount.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving Petitioner's complaint against Respondent in the amount of $7,168.09. DONE AND ENTERED this 9th day of August, 2010, 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 (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 9th day of August, 2010. 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 Kathy Alves Fidelity & Deposit Company of Maryland Post Office Box 968036 Schaumberg, Illinois 60196 Steven J. Polhemus, Esquire Post Office Box 2188 LaBelle, Florida 33975 Yolanda More FYV, Inc., d/b/a Miami Tropical Nursery, Inc. 104475 Overseas Highway Key Largo, Florida 33037 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issues in this case include: whether the Respondents constructed berms and ponds and dug ditches and filled wetlands on their Property in Highlands County without required permits, as alleged by the Southwest Florida Water Management District (SWFWMD) in its Administrative Complaint; and, if so, whether the Respondents are entitled to an agricultural exemption or an agricultural closed system exemption under Section 373.406(2)- (3), Florida Statutes.
Findings Of Fact Respondents' Activities on the Property In August 2003, the Respondents, José Fernando and Liliana Urrea Aristizabal, bought approximately 30 acres of land in Highlands County, near Lake Placid, south of Miller Road, to use for a palm tree nursery. This land (the Property) is in Section 30, Township 36 South, Range 29 East. There was a large marsh approximately in the center of the Property with additional wetlands surrounding the large marsh. On December 31, 2003, and again in February 2004, representatives of SWFWMD informed Mr. Aristizabal that, due to the presence of relatively high-quality wetlands on the Property, the plant nursery he intended to establish there would require an application for an environmental resource permit (ERP). After receiving this information from SWFWMD, Mr. Aristizabal retained a consultant to advise him. The consultant advised Mr. Aristizabal on how to construct an irrigation system that would be effective and permittable; however, the consultant cautioned him that construction would have to avoid impacting the wetlands on the Property. The consultant also advised Mr. Aristizabal as to the location of the wetlands on the Property, as well as the location of "potential wetlands." In response to the consultant's advice, Mr. Aristizabal dug a circular ditch around the large marsh in the center of the Property, with additional linear ditches radiating from the central, circular ditch and intersecting with a second, larger ditch around most of the perimeter of the irrigation system, extending along the east, north, and west sides of the Property. The ditches are approximately 5-7 feet wide and 5-7 feet deep. The soil from the ditches was spread between the linear ditches to raise the ground level and create planting beds. Mr. Aristizabal also deposited fill to the north and east of the perimeter ditch to create a berm approximately 4-6 feet wide and 2-4 feet high. Effects on Surface Waters of the State The evidence proved that there were approximately 11.64 acres of wetlands on the Property, including the large central marsh. Most of the ditches dug by Mr. Aristizabal and most of the fill deposited by him between the ditches were in wetlands. In all, approximately 0.86 acres of the wetlands on the Property were dredged, and approximately 4.97 acres of the wetlands on the Property were filled. The ditches intercept, divert, and impound surface water. The berms--particularly, the berm on the north side of the Property--also obstruct the flow of surface water. Agricultural Exemption Defense The Respondents did not apply for an agricultural exemption under Section 373.406(2), Florida Statutes, from the requirement to obtain an ERP. Instead, they raised the exemption as a defense to SWFWMD's enforcement action. Regarding the agricultural exemption defense, Mr. Aristizabal's berms and his ditching and filling of wetlands impounded, impeded, and diverted the flow of surface waters. These effects more than incidentally trapped or diverted some surface waters, e.g., as occurs when a pasture is plowed. For that reason, the activities were not consistent with the practice of agriculture. Even if those activities might be considered to be consistent with the practice of agriculture, they had the predominant purpose of impounding or obstructing surface waters. The berms and the ditching and filling of wetlands obstructed surface waters in that they had the effect of more-than- incidentally diverting surface water from its natural flow patterns. The ditches also impounded surface waters. SWFWMD reasonably determined that the predominant purpose of the berms and the ditching and filling of wetlands was to impound, impede, divert, and obstruct the flow of surface waters. Agricultural Closed System Exemption Defense The Respondents did not apply for an agricultural closed system exemption under Section 373.406(3), Florida Statutes. Instead, they raised the exemption as a defense to SWFWMD's enforcement action. The Respondents did not prove that their construction resulted in an "agricultural closed system." Rather, the evidence was that surface waters of the state are discharged from, and onto, the Property during most years. Requested Corrective Action SWFWMD seeks alternative corrective action by the Respondents: expeditiously apply for and obtain an after-the- fact permit; or expeditiously submit and perform an acceptable plan to restore the land to its natural grade and to remediate as necessary to restore any loss of wetland functions. The specifics of the requested alternative corrective action are set out in paragraphs 19 and 20 of the Administrative Complaint. The requested alternative corrective actions are reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Governing Board enter a Final Order requiring the Respondents to apply for the necessary after- the-fact permit and/or restore wetland impacts, as described in Finding 12, supra. DONE AND ENTERED this 21st day of August, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 21st day of August, 2008. COPIES FURNISHED: David L. Moore, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 José Fernando Aristizabal Liliana Urrea Aristizabal 6650 Southwest 189th Way Southwest Ranches, Florida 33332 Joseph J. Ward, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604
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.
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 The issue is whether the claims of $98,935.20 and $19,147.70, filed by Petitioner under the Agricultural Bond and License Law, are valid. §§ 604.15 - 604.34, Fla. Stat. (2008).
Findings Of Fact At all material times, Petitioner has been a producer of agricultural products located in Plant City, Florida. At all material times, American Growers has been a dealer in agricultural products. Respondent Lincoln General Insurance Company, as surety, issued a bond to American Growers, as principal. American Growers is licensed by the Department of Agriculture and Consumer Services ("DACS"). Between December 16, 2008, and February 4, 2009, Petitioner sold strawberries to American Growers, each sale being accompanied by a Passing and Bill of Lading. Petitioner sent an Invoice for each shipment, and payment was due in full following receipt of the Invoice. Partial payments have been made on some of the invoices, and as of the date of this Recommended Order, the amount that remains unpaid by American Growers to Petitioner is $117,982.90, comprising: Invoice No. Invoice Date Amount Balance Due 103894 12/16/08 $7,419.00 $1,296.00 103952 12/22/08 $18,370.80 $1,944.00 103953 12/23/08 $3,123.60 $648.00 193955 12/26/08 $8,164.80 $1,728.00 103984 12/28/08 $28,764.40 $28,764.40 104076 12/31/08 $17,236.80 $17,236.80 104077 1/5/09 $17,658.00 $17,658.00 104189 1/5/09 $1,320.90 $1,320.90 104386 1/20/09 $16,480.80 $16,480.80 104517 1/29/09 $17,449.20 $17,449.20 104496 2/4/09 $13,456.80 $13,456.80 TOTAL $117,982.90
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring Respondent, American Growers, Inc., and/or its surety, Respondent, Lincoln General Insurance Company, to pay Petitioner, Crown Harvest Produce Sales, LLC, the total amount of $117,982.90. DONE AND ENTERED this 18th day of May, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 18th day of May, 2010. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture and Consumer Services The Capital, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, Mail Station 38 Tallahassee, Florida 32399-0800 Glenn Thomason, President American Growers, Inc. 14888 Horseshoe Trace Wellington, Florida 33414 Katy Koestner Esquivel, Esquire Meuers Law Firm, P.L. 5395 Park Central Court Naples, Florida 34109 Renee Herder Surety Bond Claims Lincoln General Insurance Company 4902 Eisenhower Boulevard, Suite 155 Tampa, Florida 33634 Glenn C. Thomason, Registered Agent American Growers, Inc. Post Office Box 1207 Loxahatchee, Florida 33470
The Issue By its Complaint filed on June 19, 1985, with the Department of Agriculture and Consumer Services, East Marsh claims that Goulding owes $1513.64 for nursery stock purchased in December 1984. The issue in this proceeding is the validity of that claim. At the outset of the hearing, it was determined that Wendy Soowal, as Vice-president and daughter of J. M. Soowal, President, was authorized to represent East Marsh, the family corporation. Magnolias Nursing and Convalescent Center v. Department of HRS, 428 So.2d 256 (1st DCA 1982). The Respondent, Don Goulding, is a sole proprietorship and represented himself. The parties themselves were the only witnesses. Four exhibits of the Petitioner were admitted without objection; however, page 2 of Petitioner's Exhibit No. 4, identified as a statement of account, appears to relate to a customer other than Goulding and was not considered in the rendering of this Recommended Order. Neither party submitted proposed findings of fact and conclusions of law, and the transcript was not requested.
Findings Of Fact East Marsh is a producer of agricultural products, more specifically: nursery stock. Goulding owns and operates a landscape business and relies on producers such as East Marsh for the nursery materials which he in turn provides to his customers. Both parties are located in Pompano Beach, Florida. On December 4 and 5, 1985, Goulding made purchases from East Marsh totaling $1650.94. These purchases were charged to his existing account number 427-9225. Payment on the account was sporadic; Goulding's customers weren't paying him and he could not handle his bills. He began working ten hours a day, six or seven days a week, and didn't promptly return telephone calls from his creditors. In June 1985, East Marsh lost patience and filed the complaint which initiated this proceeding. Goulding freely admits that he owes money to East Marsh. From October 1984 until present, his statement of account shows a balance running from a low of $297.20 to a high of $2418.39. At the time the Complaint was filed by East Marsh in June 1985, the balance owed by Goulding was $1513.64. The policy of East Marsh is that all charges are due within 30 days and Goulding was aware of that policy. Further, even though an arrangement was made with Wendy Soowal to pay $100.00 a month on his account, Goulding couldn't make those payments regularly. He sent a payment of $250.00 in August, and that payment is shown as a credit on the statement of account. He sent another payment of $163.64 in September, but the check was returned with a demand for full payment by letter dated September 27, 1985 from Wendy Soowal. (Petitioner's Exhibit No. 3). With the credit of $250.00, the balance owed by Goulding to East Marsh is $1263.64. That balance is reflected on the statement of account. (Petitioner's Exhibit No. 4).
Recommendation Based on the foregoing it is recommended that a Final Order be issued requiring Respondent, Goulding, to pay East Marsh $1263.64. The Final Order should specify that failure to comply will result in a requirement that Co-Respondent, Lawyers Surety Corporation, pay said sum to the Department for distribution to East Marsh. DONE and ORDERED this 6th day of December, 1985, in Tallahassee, Florida. MARY CLARK, 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 6th day of December, 1985. COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Donald R. Goulding, Landscapes & Designs by Don 7400 N W 44th Avenue Pompano Beach, Florida 33067 Lawyers Surety Corporation P. O . Box 19327 Orlando, Florida 32814 East Marsh Nursery, Inc. Route #1, Box 643 H Pompano Beach, Florida Robert Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Mr. Joseph Kight, Chief Bureau of License & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301
