The Issue Whether Respondent owes payment to Petitioner in the amount of $60,748.78 for watermelons sold by Petitioner to Respondent.
Findings Of Fact Between May 18 and June 5, 1990, Petitioner James G. Young sold a total of 40 truckloads of watermelons to Respondent Maddox Brothers Produce, Inc. Petitioner was to have received a price of five cents per pound through May 26, 1990 and four cents per pound through the remainder of the shipping season. Respondent has failed to pay $60,748.78 of the amount owed to Petitioner for such produce. At no time did Petitioner received any complaint that the watermelons were unsatisfactory. Respondent is a licensed agricultural dealer engaged in the business of brokering agricultural products, Florida license #0030. Respondent is subject to regulation by the Department. Respondent has posted a Fireman's Fund Insurance Company surety bond #11141308327 in the amount of $50,000 with the Department. Respondent did not appear at the hearing. No evidence was presented to contradict the testimony of the Petitioner.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that The Florida Department of Agriculture and Consumer Services enter a Final Order requiring Maddox Brothers Produce, Inc., to pay to Petitioner the sum of $60,748.78. DONE and RECOMMENDED this 26th day of April, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1991. COPIES FURNISHED: The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel 515 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 James G. Young Route 3 Box 272-A Wildwood, Florida 34758 Patricia M. Harper, President Maddox Brothers Produce, Inc. 2124 Forest Avenue Knoxville, Tennessee 37916 Fireman's Fund Insurance Company Surety Claims Center Post Office Box 193136 San Francisco, Florida 94119-3136
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.
Conclusions Petitioner, Above All Lawn Care & Landscaping, Inc., and Hartford Fire Insurance Company, Respondents. /
Findings Of Fact Respondent Shaughnessy is a licensed real estate broker in Florida, holding license number 0079279 at all material times. He has been a real estate broker for 18 years. Respondents Conifer Consulting Group, Inc. and Conifer Realty Group, Inc. are corporations registered as real estate brokers, holding license numbers 0271201 and 0271202, respectively. In January 1992, Mr. Shaughnessy answered a want ad seeking a sales manager for single-family and condominium sales for Respondent Conifer Consulting Group, Inc. Mr. Shaughnessy received an interview with Scott Spence, the minority owner of both Conifer corporations. Following a successful interview, Mr. Shaughnessy interviewed with Bruce Houran, the majority owner of the Conifer corporations. Mr. Spence was the marketing director of the Conifer corporations. A civil engineer, Mr. Houran had provided the money for the businesses and relied on Mr. Spence's expertise in a wide variety of business matters, including the real estate operations. Following a successful interview with Mr. Houran, Mr. Shaughnessy had a final interview with Mr. Spence and Mr. Houran. At the conclusion of the third interview, the three men agreed that Mr. Shaughnessy would join the Conifer corporations as a sales manager, devoting his efforts to managing the sole salesperson working for the Conifer corporations at Bocilla Island Club in Bokeelia. In return for his efforts, the Conifer corporations agreed to pay Mr. Shaughnessy the sum of $350 weekly plus certain expenses. During the course of the interviews, Mr. Shaughnessy mentioned that he was a licensed real estate broker. The Conifer corporations were employing Ms. McClaran as their registered broker, but she had in reality only lent her license to the Conifer corporations in return for a portion of the sales and rental commissions. Following the interviews, and outside the presence of Mr. Shaughnessy, Mr. Houran expressed interest to Mr. Spence in replacing Ms. McClaran with Mr. Shaughnessy. Pursuant to this plan, Mr. Houran sent a letter to Ms. McClaran, with a copy to Mr. Spence but not Mr. Shaughnessy, terminating her employment with the Conifer corporations. The letter states that they have hired Mr. Shaughnessy as a "sales manager with a Broker's license" and adds that he will be providing his license to the Conifer corporations. Pursuant to the employment contract with Ms. McClaran, the letter gives her 90 days' notice, and she continued to earn commissions on sales contracts executed during that time. Unfortunately, no one told Mr. Shaughnessy that he was the new broker for the Conifer groups. Ms. McClaran's name continued to appear on the door to the real estate offices, even after the 90 days had expired. The Conifer corporations never had business cards printed up showing Mr. Shaughnessy as the broker, nor did Mr. Shaughnessy or anyone else hold Mr. Shaughnessy out as the broker for the companies. In late October 1992, the Conifer real estate salesperson contacted the Florida Real Estate Commission to inquire as to the status of her pending application to become a broker. She learned that the Conifer corporations were no longer properly licensed, as their license had expired in March 1992. The salesperson contacted Mr. Houran and told him about what she had learned. Mr. Houran called Mr. Shaughnessy and informed him of the licensing situation. Mr. Shaughnessy immediately began the process of placing his broker's license with Conifer Realty Group, Inc. (Mr. Houran decided not to continue to involve Conifer Consulting Group, Inc. in real estate activities.) Mr. Houran appointed Mr. Shaughnessy as an officer of Conifer Realty Group, Inc. on October 23, 1994. On November 4, 1992, Mr. Shaughnessy filed with Petitioner a Request for Change of Status to effect the necessary change. Only when Mr. Shaughnessy filed the paperwork with Petitioner did his rate of compensation change. His old pay rate of $350 weekly was replaced by a new arrangement in which he received an equity interest in future developments created by either Conifer corporation. In late October or early November 1992, Mr. Shaughnessy also began the process of creating an escrow account for Conifer Realty Group, Inc. Previously, all escrow monies had been deposited in the general operating account of the corporation. No one performed monthly reconciliations of escrow monies, although no monies were ever lost. Working as quickly as possible to transfer sales and rental escrow monies into the new account, Mr. Shaughnessy received the first bank statement for the account around December 6, 1992, performed the required reconciliation, and determined that the escrow account was in good order and balanced. By the time of an inspection from one of Petitioner's investigators on December 4, 1992, there was no sign on the door of the real estate office at Bocilla Island Club. However, at that time, neither Conifer corporation had any relationship with the developer of the units, nor was either Conifer corporation conducting business of any sort out of this office. The salesperson who had discovered the problem had resigned, had formed a new company, had assumed Conifer's responsibilities for sales and rentals, and was using the old office at the Bocilla Island Club. Until the time of the filing with Petitioner in November, Mr. Shaughnessy was never aware, nor could he have reasonably been aware, that his broker's license was to be used to qualify the Conifer corporations. Communications had broken down between Mr. Houran and Mr. Spence or Mr. Spence and Mr. Shaughnessy. In any event, Mr. Shaughnessy never agreed to place his license with either Conifer corporation until October 1992. At all material times during which Mr. Shaughnessy's broker's license was placed with the Conifer corporations, the escrow account was maintained and properly reconciled. There is no evidence that the signage was improper at anytime, except possibly in connection with the real estate office operated by the former salesperson. However, the Conifer corporations are liable for the substantial period of time during which they operated without an escrow account. Although no money was lost or unaccounted for, management's casual attitude toward serious legal responsibilities is manifest in the sloppy way that the Conifer companies handled the transition between brokers and the improper relationship that they earlier maintained with Ms. McClaran. As a result of her involvement in the matter, Ms. McClaran, who was an inexperienced broker and personal friend of Mr. Spence, had her broker's license suspended for 90 days. It is a matter of some mitigation that Mr. Spence is no longer involved with either Conifer corporation and that Mr. Houran reasonably expected that his noninvesting co-owner would provide something of value to the companies--namely, his expertise in real estate matters, including licensing. The absence of injury to the public, although irrelevant to the issue of liability, is another factor in mitigation, as is the quick action taken by the corporations, through Mr. Shaughnessy and at Mr. Houran's direction, to correct the situation as soon as it was brought to their attention.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against William P. Shaughnessy; finding Conifer Realty Group, Inc. and Conifer Consulting Group, Inc. guilty of failing to maintain an escrow account and operating as a broker without holding a valid and current license as a broker; imposing an administrative fine of $4000 against the Conifer companies, jointly and severally; and issuing a reprimand against both companies. 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. 9: rejected as unsupported by the appropriate weight of the evidence. 10-12: adopted or adopted in substance. 13: rejected as unsupported by the appropriate weight of the evidence and subordinate except for fact that there was no escrow account, which is adopted. 14-15: adopted or adopted in substance. 16: to the extent of implication that the office was that of a Respondent, rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-8 and 10: adopted or adopted in substance. 9: the state of mind of Respondents, as well as their degree of culpability, has been addressed in the recommended order. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Steven W. Johnson BPR, Division of Real Estate 400 West Robinson Street N308 Orlando, Florida 32802 Leonard P. Reina Forsyth, Brugger 600 Fifth Avenue, South #210 Naples, Florida 33940
The Issue Is Skinner Nurseries, Inc. (Skinner), entitled to collect $28,097.10 on account, as a producer of agricultural products allegedly delivered to A & R Landscaping & Lighting, Inc. (A & R), a dealer in agricultural products?
Findings Of Fact From the pleadings it is found that Skinner is a producer of agricultural products and A & R is a dealer in agricultural products in Florida. Old Republic is the surety for the bond to secure A & R's performance consistent with its activities as a dealer. §§ 604.15 through 604.34 Fla. Stat. (2002). Skinner has a business address of 2970 Hartley Road, Jacksonville, Florida 32257. The A & R business address is 739 Long Lake Drive, Oviedo, Florida 32765. The Old Republic business address is 445 South Moorland Road, Brookfield, Wisconsin 53005. On July 31, 2001, A & R applied for a line of credit with Skinner for the provision of plants, shrubs, and trees in their respective capacities as a dealer in agricultural products and a producer of agricultural products. That application was granted and the entities commenced business. This case involves claims by Skinner for agricultural products delivered to A & R that have not been paid for. Within Composite Exhibit 1 by Skinner is a statement of the amount owed by A & R on account no. 3008, a number assigned by Skinner. The account statement depicts transaction dates, invoice numbers, and job descriptions in relation to the charges. In addition, Composite Exhibit 1 by Skinner contains the various invoices in support of the claim. The statement date for account no. 3008 was prepared on July 8, 2003, to support the complaint in this case. But it was, and continues to be, an accurate portrayal of the amount owed by A & R to Skinner for agricultural products provided. The matters set forth in the July 8, 2003, statement of account no. 3008 that accompanies the complaint were in relevant part the same as those in a billing statement that had been mailed to A & R on July 2, 2003, that A & R has not paid. The statement of account no. 3008 for purposes of the complaint excludes certain items from the claim. Among the exclusions are charges that date from December 2002 through January 9, 2003. Those charges were not promoted in the complaint based upon their untimeliness. The dates about which claims are made end on February 26, 2003. In addition, certain charges for what are described as hard goods, mulch, and freight were not claimed. Reference to hard goods refers to items to stake trees sold, also referred to as tree guy kits. Finally, no interest is claimed on the account. Within the July 8, 2003, statement of account no. 3008 an asterisk by invoice numbers indicates that the charges were solely for the provision of mulch. Therefore, these invoices are not included in Skinner's Composite Exhibit numbered 1, as is the case where invoices are associated with the period before January 13, 2003, and after February 26, 2003. At hearing Skinner established without contradiction that, with the exclusions noted, it supplied the plants, shrubs, and trees to A & R and has not been paid $28,097.10 on account no. 3008.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that A & R owes Skinner $28,097.10. DONE AND ENTERED this 18th day of December, 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 18th day of December, 2003. COPIES FURNISHED: Christopher Diaz, C.P.A. Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Michael A. Jankowski Old Republic Surety Company Post Office Box 1635 Milwaukee, Wisconsin 53201 Rita J. Robinson, President A & R Landscaping & Lighting, Inc. 739 Long Lake Drive Oviedo, Florida 32765
The Issue The issue is whether Respondent Southern Hay Sales Inc., (Southern Hay) and its surety, Respondent Old Republic Surety Company (Old Republic), are liable for funds due to Petitioner from the sale of agricultural products.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner produces hay on a farm owned by Petitioner near Jasper, Florida. Respondent Southern Hay is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. Hay is a natural product of a farm and, therefore, an agricultural product as defined in Section 604.15(3), Florida Statutes. Old Republic is Southern Hay's surety. Both Petitioner and Southern Hay have participated in a business arrangement since at least 1997, whereby Petitioner grew and sold to Southern Hay varying quantities of hay. Petitioner would cut, process, and then store the hay in trailers provided by Southern Hay. Petitioner would deem Southern Hay to be indebted for a load of hay when a trailer of hay was hauled away by Southern Hay personnel. On January 16, 2002, Petitioner received a signed check from Southern Hay. While there is a dispute as to who filled out the check, resolution of that question is not relevant for purposes of this matter. Suffice it to say that Southern Hay's check number 1183 was written in the amount of $2,596.45 and dated January 16, 2002. Delivery of the check to Petitioner satisfied all outstanding invoices for payment where hay had been picked up, with the exception of Petitioner's invoice number 302 documenting an obligation to Petitioner from Southern Hay in the amount of $1,241.95 for hay. Southern Hay's representative maintained at final hearing that an additional check was issued on February 15, 2002, which included payment for invoice number 302. No cancelled check was presented to corroborate the testimony of Southern Hay's representative and such omission, coupled with the general demeanor of the representative, prevents the testimony of the representative, Andrew Snider, from being credited in this regard. Southern Hay and its surety, Old Republic, currently owes Petitioner for an unpaid invoice in the amount of $1,241.95.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Department of Agriculture and Consumer Services enter a final order requiring Respondent Southern Hay Sales, Inc., or its surety, Respondent Old Republic Surety Company, to pay Petitioner for an unpaid invoice in the amount of $1,241.95. DONE AND ENTERED this 6th day of November, 2002, 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 6th day of November, 2002. COPIES FURNISHED: Brenda D. Hyatt, Bureau Chief Department of Agriculture 541 East Tennessee Street India Building Tallahassee, Florida 32308 Richard D. Tritschler, General Counsel Department of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Michael A. Jankowski Old Republic Surety Company Post Office Box 1635 Milwaukee, Wisconsin 53201 Sam Jones Jones Farm 6799 SR 6 West Jasper, Florida 32052 Stephen C. Bullock, Esquire 116 Northwest Columbia Avenue Lake City, Florida 32055
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 The issue in this case is whether Petitioner, H.P. Sod, Inc., is entitled to payment from an Agricultural Bond issued to Respondent, PLS Landscape Services, Inc., and, if so, the amount owed to Petitioner.
Findings Of Fact Petitioner is a licensed producer of an agricultural product, i.e., sod. Petitioner is a duly incorporated for-profit corporation in the State of Florida and is in good standing. Horacio Pereira is the putative owner of the company, referring to himself at final hearing as “the boss, the guy who tells people what to do.” Respondent is a duly incorporated Florida corporation. Its business address is 6132 Snook Court, Port St. Lucie, Florida. The only officer or director of the corporation is George J. Kijewski. Respondent is a landscaping business. From the period July 23, 2012, through October 16, 2012, Respondent purchased quantities of Bahia sod from Petitioner on numerous occasions. The dates of purchase, quantity of sod purchased, and ticket numbers for each purchase are as follows: 23 – Ticket 36930 – 10 pallets 23 - Ticket 36983 – 16 pallets 30 – Ticket 37185 – 10 pallets 1 – Ticket 36818 – 16 pallets 1 – Ticket 37276 – 16 pallets 1 – Ticket 37283 – 16 pallets 6 – Ticket 36872 – 16 pallets 8 – Ticket 37319 – 16 pallets July July July August August August August August August 10 – Ticket 37339 – 16 pallets September 4 – Ticket 37727 – 16 pallets October 15 – Ticket 38712 – 16 pallets October 16 – Ticket 38720 – 16 pallets Petitioner issued the following invoices to Respondent concerning the aforementioned purchases of Bahia sod: Invoice 6615 – July 26 – Tickets 36930, 36983 $620.20 Invoice 6640 – August 2 – Tickets 36818, 37185, 37276, 37283 - $1,420.96 Invoice 6671 – August 16 – Tickets 36872, 37319, 37339 - $1,104.24 Invoice 6735 – September 6 – Ticket 37727 - $445.12 Invoice 6875 – October 18 – Tickets 38712, 38720 - $890.24 TOTAL - $4,481.11 Respondent did not remit payments on any of the aforementioned invoices. Respondent contends that some of the sod which it purchased from Petitioner was of inferior quality or was in less quantity than ordered. Specifically, Respondent said some of the sod was wet and fell apart when being installed. He also said the wet sod resulted in some pallets containing 370 to 390 square feet of sod rather than the 400 feet that is standard on a pallet. Respondent’s testimony was general in nature, not specific to any particular shipment, and flies in the face of his on-going purchases of sod from Petitioner. Further, there was no credible evidence presented at final hearing that Respondent ever complained to Petitioner about the quality or quantity of the sod. Had he done so, Petitioner said it would have corrected the problem. Respondent did reportedly tell one of his drivers, Mr. Calloway, on occasion that the sod was wet or otherwise not up to par. However, that complaint was never provided to Petitioner so that action could be taken. Respondent acquired a bond in the sum of $5,000.00 through TD Bank, N.A. (also referred to in this matter as United States Corporation Company, as Surety). The bank was not represented at the final hearing held in this matter. No defense was raised by the bank concerning Petitioner’s attempt to attach the bond. Petitioner paid a fee of $50.00 to the Department of Agriculture to bring this action. Petitioner hired an attorney to represent its interest in this matter. The attorney charged $175.00 per hour and, as of the date of the final hearing, had billed approximately five hours of time or $875.00 in fees. Subsequent to the final hearing, the attorney submitted a post-hearing proposed order on behalf of Petitioner. The attorney expended $180.00 in costs for service of a subpoena and witness fees. The total sum demanded by Petitioner in its action against Respondent is $5,586.11. Respondent’s PRO filed in this matter asserts a number of “facts” which were not established by competent testimony at the final hearing. Those facts were not considered in the preparation of this Recommended Order.
Recommendation Based upon the findings of fact and conclusions of law set forth above, it is hereby RECOMMENDED that a Final Order be entered by the Department of Agriculture and Consumer Services as follows: Respondent shall pay to Petitioner, within 15 days of the entry of the Final Order, the sum of $5,586.11; or If Respondent fails to timely make the aforementioned payment, the Department shall call upon TD Bank, N.A., to pay over to the Department the full amount of Respondent’s bond; and The Department shall then turn the entire proceeds of the bond over to Petitioner. DONE AND ENTERED this 8th day of March, 2013, 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 8th day of March, 2013.
