Findings Of Fact Jack G. Baker, d/b/a Jack G. Baker, is an individual in the business of selling sod to others and installing sod himself. DeBusk Sod, Inc. (DeBusk) is a corporation in which the majority of the shares are owned by Susan D. Meagher, whose husband, James, is the minority shareholder. DeBusk installs sod in the central Florida area. Just prior to July 1992, DeBusk contacted Baker regarding the purchase of sod. Because of an ongoing drought which was affecting the area DeBusk ordered two truckloads of sod to sample the quality of the product immediately prior to July 5, 1992. DeBusk previously had ordered many thousands of dollars worth of sod from Baker. Baker loaded and transported two truckloads of sod to the Meaghers, who were satisfied with the quality of the sod and purchased an additional 186 pallets which they arranged to pick up in Baker's field. There was not a written contract for the sale of sod; however, all of the parties agree that DeBusk ordered 186 pallets of sod at $17.00 per pallet, f.o.b. (free on board) DeBusk's trucks in Baker's field. DeBusk paid Baker $322.00 on August 25, 1992 and $833.00 on September 22, 1992, in partial payment for the sod. There remained a balance owing of $2,007.00 which was not paid by DeBusk. DeBusk ordered the sod after receiving the sample truckloads. James Meagher drove one of the trucks and was present when the sod was cut and loaded. At that time, James Meagher had the opportunity to inspect the sod being cut and loaded. Meagher accepted delivery of the sod in Baker's field. Conflicting testimony was received at the hearing regarding the nature of the warranty on sod in the course of selling this agricultural product. The most credible evidence is that bahia sod is generally sold with an implied warranty that the product is free of large amounts of weeds or disease, and will take root and grow if properly installed and watered. James Meagher testified, and his testimony was uncontroverted, that the sod in question was properly installed and watered. Jack G. Baker testified regarding bahia sod. Bahia sod is exceptionally hardy and, if properly installed and watered, will survive and take root. The sod provided to DeBusk was cut and delivered at the same time as sod which was cut for Baker's own sodding operation and that of another independent sod company. The sod which Baker cut from this field was installed and survived when watered, and Baker received no complaints from the other sodding contractor regarding the sod which Baker had sold him. James and Susan Meagher contacted Mr. Baker when the sod which they had purchased from Baker began to die and asked Mr. Baker to inspect the sod and stand behind the product. Mr. Baker refused to inspect the product asserting that if the sod was dying, DeBusk had failed to water the product as required. DeBusk refuses to pay for that portions of the sod purchased which died because it failed to conform to the implied warranty. Carl Hiers, a sodding contractor, testified regarding bahia sod. If cut too thin during a severe drought, bahia sod can go into shock and die although it is watered. Mr. Hiers did not see the sod in question, and could not offer an opinion about whether it had failed to thrive because it had been cut too thin. Jack Baker testified regarding cutting sod too thin. If sod is cut thick enough to hold together, it is thick enough to survive the shock of being cut and transplanted. A portion of the sod fell from one of the last loads cut for DeBusk and lay in Baker's field for three days before a neighbor of Baker's picked it up and used it to sod an area over a septic tank where it grew and thrived.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DeBusk Sod have sixty days within which to pay to Jack G. Baker d/b/a Jack G. Baker Sod $2,007.00, and failing in that, Auto Owners Insurance Company be required to pay to Jack G. Baker d/b/a Jack G. Baker Sod $2,007.00 from DeBusk Sod, Inc.'s agricultural bond. DONE AND ENTERED this 7th day of May, 1993, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1993. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Jack G. Baker Jack G. Baker Sod 1415 Bruno Road Clermont, FL 34711 James and Susan Meagher DeBusk Sod, Inc. 7555 East Turner Camp Road Inverness, FL 34453 Brenda Hyatt, Chief Department of Agriculture Bureau of Licensure and Bond 508 Mayo Building Tallahassee, FL 32399-0800
The Issue Whether Respondent T and J Sod Service, Inc. (T and J Sod) is indebted to Petitioner for agricultural products (the sale of sod represented by Trip Tickets 11902 and 11917), and, if so, the amount of the indebtedness. Whether Respondent Great American Insurance Company is liable to Petitioner for any unpaid indebtedness owed Petitioner by T and J Sod.
Findings Of Fact At all times relevant to this proceeding, Harmon Sod was a producer of agricultural products within the meaning of Subsection 604.15(9), Florida Statutes.1 Sod is an agricultural product within the meaning of Subsection 604.15(1), Florida Statutes.2 At all times relevant to this proceeding, T and J Sod was a “dealer in agricultural products” within the meaning of Subsection 604.15(2), Florida Statutes.3 At all times relevant to this proceeding, T and J Sod was licensed as a dealer in agricultural products by the Department. At all times relevant to this proceeding, Great American Insurance Company served as surety for T and J Sod. At all times relevant to this proceeding, T and J Sod was a customer of Harmon Sod. T and J Sod purchased sod from Harmon Sod and thereafter resold and installed the sod to T and J Sod’s customers. Harmon Sod sold to its customers sod on wooden pallets. An integral part of each transaction involved the pallet. If a customer did not give Harmon Sod an empty pallet when it purchased a pallet of sod, Harmon Sod charged the customer for the sod and an additional $5.00 for the pallet. There was a dispute whether T and J Sod purchased the sod represented by Trip Ticket 19902 or by Trip Ticket 11917. Mr. Gonzalez testified that his driver did not sign for the sod on either Trip Ticket and that he did not receive the pallets of sod represented by either Trip Ticket. As to Trip Ticket 11902, the greater weight of the credible evidence established that on Friday, April 25, 2008, Harmon Sod had six extra pallets of Bahia sod. Tommy Wuchte wanted to sell the sod so it would not sit on the pallets over the weekend. Tommy Wuchte testified, credibly, that he called Mr. Gonzalez and asked if could use the sod. Mr. Gonzalez agreed to purchase the six pallets of sod. Tommy Wuchte thereafter delivered the six pallets of sod to T and J Sod and signed his name on the Trip Ticket 11902. As to Trip Ticket 11902, T and J Sod is indebted to Harmon Sod in the amount of $148.50 plus tax in the amount of $9.65 (at the rate of 6.5 percent) for six pallets of sod and $30.00 for six pallets at $5.00 per pallet, for a total of $188.15. As to Trip Ticket 1197, the greater weight of the evidence established that on Tuesday, April 29, 2008, Mr. Gonzalez called Tommy Wuchte and told him that he was sending a contract driver to pick up 18 pallets of Bahia sod. Mr. Gonzalez told Tommy Wuchte that he had fired his regular driver. On April 29, 2008, a contract driver came to the sod farm where Harmon Sod was cutting sod, and told Ronald Wuchte that he was picking up the 18 pallets of sod for T and J Sod. Ronald Wuchte loaded the 18 pallets of sod on the driver’s truck and had the driver sign Trip Ticket 1197. As to Trip Ticket 1197, T and J Sod is indebted to Harmon Sod in the amount of $445.50 plus tax in the amount of $28.96 (at the rate of 6.5 percent) for the 18 pallets of sod and $90.00 for 18 empty pallets at $5.00 per pallet, for a total of $564.46. Harmon Sod had to pay a $50.00 filing fee to file this claim, for which it is entitled to reimbursement from T and J Sod pursuant to Subsection 604.21(1)(a), Florida Statutes. T and J Sod is indebted to Harmon Sod in the total amount of $802.61.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Pursuant to Subsection 604.21(7), Florida Statutes, T and J Sod should be ordered to pay to Harmon Sod the sum of $802.61 within 15 days of the entry of the Final Order. Pursuant to Subsection 604.21(8), Florida Statutes, Great American Insurance Company, as surety, should be ordered to pay to Harmon Sod the sum of $802.61 should T and J Sod fails to timely make that payment. DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 5th day of March, 2009.
The Issue The issues in this case are whether Raysbrook Sod, Inc. (Respondent), is indebted to Florida Sod, Inc. (Petitioner), related to the sale and purchase of sod, and, if so, in what amount.
Findings Of Fact Petitioner is a corporation engaged in the business of harvesting sod. Petitioner is located in LaBelle, Florida. Respondent is a corporation located in Riverview, Florida, and is also engaged in the sod business. In September 2007, Respondent was interested in purchasing some sod in order to satisfy a customer's needs. Respondent's regional supervisor, Gabriel Monsivais, approached a gentleman by the name of Trampis Dowdle about purchasing sod. Monsivais had never met Dowdle and, in fact, knew him only as "Mr. Trampis." Dowdle represented that he could obtain sod from Petitioner, and a deal was struck. There was no written contract between Monsivais and Dowdle, nor--quite interestingly- -between Petitioner and Respondent. Nonetheless, Respondent had its drivers go to Petitioner's sod field and begin loading sod for Respondent's use. In all, approximately 1,700 pallets of sod were acquired from Petitioner's field by Respondent. Each time a load of pallets was taken, a Load Sheet was created to show the number of pallets, the location of the field, and the name of the person taking the sod. The driver of the truck was expected to sign the Load Sheet, indicating that the sod had indeed been received. There is no dispute between the parties about the number of pallets taken by Respondent's drivers.1 As sod was taken by Respondent, Petitioner would issue an invoice reflecting the amount of sod and the price to be paid. The invoices were sent to Respondent via U.S. Mail. The total amount billed for the sod was $42,559.16. Respondent issued a check (No. 8899) in the amount of $1,271.16, made payable to Petitioner on November 30, 2007, in payment of the first invoice from Petitioner. No further checks from Respondent were received by Petitioner, leaving a balance due of $41,288.00.2 Respondent, however, did attempt to make payments for the sod it purchased. Respondent wrote checks to Dowdle based on Dowdle's representations that he either owned Petitioner's company or was working for Petitioner. In fact, Dowdle neither owned nor was in any way affiliated with Petitioner. Dowdle was apparently defrauding Respondent (and possibly Petitioner as well). Respondent's representative, Joseph Bushong, and Petitioner's representative, Jake Alderman, had never met prior to the day of the final hearing in this matter. There was no written contract between the parties. The entire business relationship between the parties was done orally, based on conversations between Monsivais and Dowdle. Nonetheless, Respondent did obtain over $42,000.00 worth of sod from Petitioner. Respondent does not contest this fact. Respondent's actions indicate acknowledgement of the presumed relationship between the parties. Respondent submitted a credit application to Petitioner with references and credit information to be used by Petitioner in extending credit to Respondent for the sod it was purchasing. Respondent issued at least one check directly to Petitioner for payment of the sod in response to an invoice issued by Petitioner. The check was made payable to "Florida Sod" in the amount of $1,271.16. That check directly corresponds to the amount in Invoice No. 1697 from Petitioner dated October 8, 2007. Respondent did receive additional invoices from Petitioner for the sod Respondent had purchased and received. Clearly, there was an understanding between the two companies that a business relationship existed. After making its first payment to Petitioner, Respondent's subsequent payments for the sod were made directly to Dowdle and his companies. One such payment, made by way of a credit card, was actually applied to a restaurant with which Dowdle apparently had some business connection. Other payments were made via checks made payable to other Dowdle interests. Respondent made payments to Dowdle in the mistaken belief that Dowdle was the agent of or employed by Petitioner. In fact, Dowdle has never been affiliated with Petitioner. Petitioner did not receive any of the payments made by Respondent to Dowdle. Petitioner and Dowdle are not related or affiliated in any fashion (other than a prior arm's-length sod purchase between the two). It is clear that Dowdle received the payments intended for Petitioner in payment for the sod purchased by Respondent. Dowdle, whose whereabouts are unknown by the parties, did not provide Petitioner with the payments. Rather, from the evidence, it appears that Dowdle kept the payments, thereby committing a fraud on both Petitioner and Respondent. Though both parties are somewhat at fault in this matter for failure to utilize normal and acceptable business practices, one or the other party must necessarily bear the burden of payment. The evidence supports Petitioner in this regard because it best followed normal business procedures. Had Respondent made its remittance checks payable to Petitioner (who had issued the invoices), Dowdle would not have been able to abscond with the money. Had Respondent obtained some affirmative proof that Dowdle was an agent of Petitioner, Respondent would have known better than to provide money to Dowdle. Had Respondent contacted Petitioner directly instead of relying on third parties (its foreman and Dowdle), the deception would have been uncovered. However, the facts of this case support the proposition that Petitioner made a valid sale of sod to Respondent, and Respondent did not pay Petitioner for the sod.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services requiring Respondent to pay Petitioner the sum of $41,288.00 within 30 days of entry of a final order. DONE AND ENTERED this 31st day of October, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2008.
The Issue Whether Respondent owes Petitioner $14,080 on account for vegetables sold and delivered at the request of Respondent.
Findings Of Fact Petitioner, M.O. "Buster" Williams, is an agent for the producers of agricultural products, carrots, red radishes and white corn. Respondent, Dougal M. Buie, III, d/b/a Blue Star Citrus and Vegetables, is a dealer of such products in the normal course of its business activity. Respondent is licensed by the Department of Agriculture and Consumer Services and is bonded by First Union National Bank of Florida. Petitioner sold Respondent carrots, red radishes and white corn by the truck load between the period May 19, 1993 and June 14, 1993, and was given a Bill of Lading therefor. Respondent was sent an Invoice for each shipment and payment was due in full following receipt of the Invoice. As of the date of the formal hearing, each invoice for shipments made between May 19 and June 14, 1993 remains due and owing and unpaid. The total amount of indebtedness owed by Respondent, Buie, to Petitioner is $14,080.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring Respondent to pay to the Petitioner the sum of $14,080.00 DONE and ENTERED this 16th day of March, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1994. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Robert F. Vason, Jr., Esquire Potter, Vason and Clements 308 East Fifth Avenue Mount Dora, Florida 32757 M.O. Buster Williams 1412 Raintree Lane Mount Dora, Florida 32757 Lewis Stone, Esquire P. O. Box 2048 Eustis, Florida 32727-2048 First Union National Bank of Florida 21 North Grove Street Eustis, Florida 32726
The Issue Should the $2,115 remitted to Sod Busters by Southern Grassing and Sod, Inc. by check number 88508 drawn on The Bank, Florida Bank of Commerce, Clearwater, Florida dated September 14, 1993, be considered as payment of the $2,115 required by the Department of Agriculture and Consumer Services in its Final Order issued on August 31, 1993?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Sod Busters and Southern had a course of dealing wherein Sod Busters furnished agricultural products (grass sod) to Southern for which Southern agreed to pay Sod Busters. Southern failed to pay Sod Busters for the grass sod as agreed. Sod Busters filed a civil action, Case No. 93-235CC in County Court in Charlotte County, Florida, against Southern for its unpaid account on April 26, 1993. Sod Busters filed a complaint with the Department's Bureau of License and Bond (LB Claim No. 93-0029) in the amount of $2,115 under the provisions of the Agricultural Bond and License Law, Sections 604.15 - 604.34, Florida Statutes, for that portion of its account which was still timely. The amount of this claim was also included in Sod Busters civil claim referred to in Finding of Fact 3, above. On August 31, 1993, the Department issued its Final Order in LB Case No. 93-0029. The Final Order provided that: (a) Southern was indebted to Sod Busters in the amount of $2,115; (b) Southern pay Sod Busters the sum of $2,115 within 15 days of the Final Order becoming final; (c) if Southern failed to timely pay Sod Busters, then Fidelity, as Surety, was ordered to pay under the conditions and provisions of the bond; (d) the Final Order would become final 14 days from the date of mailing unless a hearing was requested within the 14-day period and; (e) the Final Order was mailed on August 31, 1993. There was no evidence of any hearing being requested within the 14-day period; therefore, the Final Order became final on September 29, 1993. On September 13, 1993, the civil action proceeded to trial and Sod Busters recovered a judgment of $9,013.40, which included the $2,115 indebtedness included in the Department's Final Order in LB Case No. 93-0029. On September 14, 1993, Southern purchased an Official Check from The Bank, Florida Bank of Commerce, Clearwater, Florida in the amount of $2,115 made payable to Sod Busters. On September 15, 1993, Southern made arrangements with Federal Express for the check and a document from Southern titled "Final Release of Lien and Claim #LB-93-0029" (Release) to be delivered to Sod Busters in Arcadia, Florida. Federal Express delivered the check and the Release of Claim #LB-93-0029 to Sod Busters on September 16, 1993, some 13 days before the Final Order became final. The check and was signed for by M. Johnson, an employee of Sod Busters. The Release provides that "[t]he undersigned," (Sod Busters) "in consideration of payment of ***$2,115.00*** receipt is hereby acknowledged, hereby waives and releases: State of Florida Department of Agriculture & Consumer Services License #05692 and Fidelity & Deposit Company of Maryland Bond #30470963 from any claim, demand, lien . . . . This is a FINAL RELEASE OF LIEN AND CLAIM . . . and does hereby release and forever discharge the State of Florida and Fidelity & Deposit Company of Maryland." Sod Busters refused to execute the Release on basis that it would discharge Southern's account. Sod Busters did not apply the $2,115 received on September 16, 1993, from Southern against the Department's Final Order in LB Case No. 93-0029, but applied the $2,115 to Southern's open account which was in civil litigation. On September 21, 1993, the court in the civil action reduced the claim in the civil action ($9,013.40) by the amount paid to Sod Busters by Southern ($2,115) which left a judgment against Southern in the amount of $6,898.40. Sod Busters admits to receiving the Release of Claim #LB-93-0029 from Southern but denies that it was received simultaneously with the check. However, there is sufficient evidence to show that the Release of Claim #LB-93- 0029 was enclosed with the check and delivered to Sod Busters simultaneously with the check by Federal Express. J. Wilcoxen, president of Sod Busters, signed the complaint in LB Case No. 93-0029, had knowledge of the amount claimed in the complaint ($2,115) and received the Final Order from the Department adjudicating Southern's indebtedness to Sod Busters in the amount of $2,115. There is sufficient evidence to show that Sod Busters was given sufficient notice by Southern that the $2,115 was for the satisfaction of the Final Order in LB Case No. 93-0029, particularly since the release included with the check indicated the same number (93-0029) as the case number of the complaint filed with the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Petitioner Southern Grassing and Sod, Inc. satisfaction of the Final Order in LB Case No. 93-0029. DONE AND ENTERED this 6th day of June, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, 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 6th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6035A The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case. Sod Buster's Proposed Findings of Fact: Proposed findings of fact 1 through 6 are adopted in substance as modified by Findings of Fact 1, 2, 3, 4, 5 and 9, respectively. Proposed finding of fact 7 is adopted in substance as modified in Findings of Fact 7 and 12. Proposed finding of fact 8 is covered in the Preliminary Statement. The first, third and fourth sentence of proposed finding of fact 9 is covered in the Preliminary Statement. The balance of proposed finding of fact 9 is adopted in substance as modified in Findings of Fact 10 and 13. Proposed finding of fact 10 is adopted in substance as modified in Finding of Fact 10. Southern's Proposed Findings of Fact: Southern elected not to file any proposed findings of fact. Fidelity's Proposed Findings of Fact Fidelity's proposed findings of fact are presented as "Uncontroverted Facts" and "Additional Facts" and shall be responded to in that manner. Uncontroverted Facts: Paragraphs 1 through 3 are adopted in substance as modified in Findings of Fact 5, 9 and 11. Additional Facts: Paragraph 1 is an introductory paragraph and requires no response. Paragraphs 2 an 3 are adopted in substance as modified in Findings of Fact 2, 3, 4, 7, 9, 12 and 13. Paragraphs 4 through 6 are rejected on the basis that they cover matters not in evidence. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 John Charles Heekin, Esquire 21202-C2 Olean Boulevard Port Charlotte, Florida 33952 Ms. Kimberly Williams Qualified Representative Southern Grassing & Sod, Inc. Post Office Box 42 Oldsmar, Florida 34677 James A. Black, Esquire 1 N/ Dale Mabry, Suite 1020 Tampa, Florida 33609
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 On September 25, 1989, Fredrick Hassut, Jr., an entomologist-inspector in the Department's Winter Park office, received a telephone call from Mary Ellen Jenkins complaining about fumigation services which had been rendered by Petitioner. In response to that telephone call, Hassut forwarded to her the Department's official form for complaints against pest control companies. Hassut received Jenkins' completed form, together with her five-page handwritten letter of complaint, on October 6, 1989. On October 9, 1989, Hassut sent to Petitioner the Department's official form for pest control companies to use in responding to consumer complaints made against them. Hassut received Petitioner's completed form on October 16, 1989. Between September 27, 1989, and November 13, 1989, when Hassut completed his investigation, he had numerous telephone conversations with Petitioner concerning Jenkins' allegations, had visited the Jenkins' residence, and had reviewed the contract entered into between Mike and Susan Gillen and Petitioner for tent fumigation of the subject residence. By the conclusion of his investigation, Hassut knew the following facts. Petitioner had been contacted by a real estate brokerage company to do an inspection for termites and wood destroying organisms at a residence, attendant to a contract for the purchase and sale of that residence. The residence was owned by Mike and Susan Gillen. Petitioner's employee performed the inspection, located drywood termites, and recommended tent fumigation for eradication. On June 9, 1989, a contract was entered into between Petitioner and Mike and Susan Gillen for fumigation services, and the contract established July 7, 1989, as the date on which such services would be performed. Although the contract called for cash upon completion of service, subsequent arrangements had been made, and Petitioner had agreed that he would be paid for the fumigation services from monies to be escrowed at the closing, a routine business arrangement in the industry. A fumigation crew went to the residence on July 7 as agreed by contract, but the services were postponed to Friday, September 8, 1989. On Saturday, September 9, the residence was tented, and a certified operator employed by Petitioner injected Vikane, the fumigant specified in the contract. On Sunday, the tarps were removed, and Petitioner "cleared" the residence, using an Interscan to test for the presence of Vikane. One of the complaints made by Jenkins and by her husband who works in the pest control industry and had done so for the previous six years was that Petitioner had failed to furnish them with a printed list of items to be removed from the structure, prior to fumigation. Mrs. Jenkins told Hassut that she was the new owner of the residence which she had purchased from Mike and Susan Gillen, that the closing on the sale had taken place on July 5, and that the Jenkins had moved into the structure prior to the structure being treated for termites. Mrs. Jenkins never represented to Hassut that she had advised Petitioner, prior to fumigation, that the ownership of the property had changed. Petitioner advised Hassut that he had never heard of Mrs. Jenkins or her husband until the day after the fumigation services were completed when Mr. Jenkins called to complain about the services. Petitioner advised Hassut that he did not know that a closing had in fact taken place and that a new owner was occupying the structure when the fumigation services were performed. Petitioner believed at all times through the completion of the fumigation work that he was dealing with the Gillens. Petitioner advised Hassut that Mike Gillen had been given a Customer Duty List, which included the written list of items to be removed from the structure, on June 9, 1989, when Mike Gillen signed the contract with Petitioner for fumigation services, and that Gillen had signed a copy of that list to show that it had been provided to him. Petitioner had assumed the closing had been postponed because the fumigation services were postponed, and termite treatment is normally a condition precedent to a closing. Had Petitioner known that there was a new owner of the structure, he would have obtained a contract from the new owner prior to the rendering of services rather than performing services for someone with whom he did not have a contract. At the time, Hassut believed that a pest control operator is under no legal duty to verify that the owner of a structure for which there is a contract for fumigation services is still the owner at the time that the services are performed. Hassut further believed that if Petitioner did not know that the Gillens had completed the sale of their home to Mrs. Jenkins and if Petitioner had given the required printed list of items to be removed to the Gillens, then Petitioner would have complied with the regulations requiring provision of that printed list. Hassut made no attempt to contact either Mike or Susan Gillen to ascertain if they had advised Petitioner that the ownership of the house had changed or to ascertain if they had been provided the required printed list, as Petitioner contended. Further, he made no attempt to contact the real estate agent or the title company involved in the closing to ascertain if they had advised Petitioner that ownership of the property had changed. Hassut specifically determined that Petitioner was not negligent in the performance of fumigation services at the Jenkins residence. When Hassut completed his consumer investigation, he prepared his Notice of Recommended Enforcement Action containing his conclusions as to violations he found during his investigation. He forwarded that document to the Department's Jacksonville office, specifically to James Bond, the enforcement coordinator, for final decision as to whether Petitioner would be charged with violating any of the statutes and rules regulating the pest control business. Hassut recommended that Petitioner be charged with two violations only. Section 482.226(6), Florida Statutes, requires that a Notice of Treatment be posted at premises where fumigation services have been performed and that the location of that Notice be notated on the service contract. Since Hassut was unable to locate the Notice of Treatment, he recommended that Petitioner be charged with violating Section 482.226(6). He also recommended that Petitioner be charged with violating Section 10D-55.110(3), Florida Administrative Code, for failing to furnish to the property owner or agent a printed list of items to be removed prior to fumigation. James Bond reviewed Hassut's investigative report and recommendations, and then forwarded that report together with Bond's own recommendation to Philip R. Helseth, Jr., pest control administrator, who made the decision that an administrative complaint should be filed against Petitioner. Part of the reason that Helseth determined to take action against Petitioner was the fact that on one occasion during Petitioner's ten and one-half years in business, Petitioner had received a warning letter from the Department. Before the Administrative Complaint was prepared and served on Petitioner, no one referred the investigation back to Hassut with instructions that he further investigate by interviewing the Gillens. Further, no one in the Jacksonville office consulted Hassut regarding the numerous violations which were included in the Administrative Complaint to determine if Hassut agreed that his investigation had revealed facts supporting the expanded list of violations. The Administrative Complaint prepared by the Department and served on Petitioner charged Petitioner with violating three statutory provisions and four of the Department's regulations. Interestingly, the one statutory violation which appeared in Hassut's recommendation--failure to post a Notice of Treatment and notate its location on the contract--was not one of the charges included in the Administrative Complaint. The Administrative Complaint charged Petitioner with having violated Sections 482.161(1)(a), 482.161(1)(e), and 482.161(1)(f), Florida Statutes, and Sections 10D-55.105(2), 10D-55.106(1), 10D-55.108(3)(c), and 10D-55.110(3), Florida Administrative Code. After service of the Administrative Complaint on him, Petitioner timely requested a formal hearing regarding the allegations contained within that Administrative Complaint. The matter was subsequently transferred to the Division of Administrative Hearings for the conduct of that formal proceeding and was assigned DOAH Case No. 90-0944. The final hearing was conducted on September 27, 1990, in Stuart, Florida. At the commencement of the final hearing, the Department dismissed several of the allegations contained in the Administrative Complaint filed against Petitioner. The Department announced on the record that the only statutes and rules Petitioner was still alleged to have violated were Sections 482.161(1)(a) (violating the Department's statutes or rules), 482.161(1)(f) (performing pest control in a negligent manner), Section 10D-55.108(3)(c) (using an improper fumigant and/or using a proper fumigant improperly), and Section 10D-55.110(3) (failing to furnish the property owner or agent a printed list of items to be removed from the structure prior to fumigation). The Recommended Order entered after the conclusion of the final hearing found that the Department offered no evidence that Petitioner used an improper fumigant or used the fumigant improperly; that the evidence was uncontroverted that Petitioner supplied Gillen, the property owner, with a Customer Duty List, the accepted common name of the fumigant to be used, notification of which materials may be contaminated or damaged by the fumigant, as well as other precautions to be taken by the property holder; that the Department offered no evidence that Petitioner was guilty of performing pest control in a negligent manner; and that Petitioner had not violated any of the Department's statutes or rules with which he was charged. That Recommended Order, entered on January 7, 1991, recommended that a final order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against him. On February 15, 1991, the Department entered its Final Order adopting the findings of fact and conclusions of law set forth in the Recommended Order, finding Petitioner not guilty of the violations with which he was charged, and dismissing the Administrative Complaint. The Department had no reasonable basis in law and fact at the time that it issued its Administrative Complaint against Petitioner. Petitioner expended the sum of $6,923.50 in attorney's fees and $698.30 in costs, for a total of $7,621.80, in successfully defending himself and his company in the administrative action resulting from the Department's Administrative Complaint.
The Issue The issue is whether Respondent Allen’s Sod Service owes Petitioner Lake Jem Farms, Inc., money for grass sod.
Findings Of Fact Before the transaction of business which is the subject of this proceeding, Petitioner’s predecessor sold lawn sod to Respondent over a period of time. Petitioner and Respondent verbally agreed that payment of Respondent’s indebtedness to Petitioner would be forthcoming upon Respondent’s retirement of indebtedness to Petitioner’s predecessor. Despite this condition of payment to Petitioner’s predecessor, Respondent nevertheless made payments to Petitioner for grass sod, thereby effectively waiving the condition with regard to amounts presently owed to Petitioner. Respondent made 24 purchases of sod from Petitioner during the months of August and September 1999, and paid Petitioner for 18 of the sod purchases. Six purchases remained unpaid for a total of $6,244.52 owed to Petitioner by Respondent. Respondent’s representative claimed at final hearing that certain sod purchases were defective, but admitted the six sod purchases for which money was still owed to Petitioner, were not among the defective purchases. Other than the allegations of other defective sod purchases, Respondent’s representative presented no direct, competent evidence of the existence of the defective products. Additionally, the evidence establishes that Respondent’s representative signed for each individual load of sod, certifying that the sod was acceptable. Thereafter each sod purchase entered into possession of Respondent’s employee for transport to the work site.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent owes Petitioner the sum of $6,244.52, which, if unpaid, is due from Respondent Fidelity & Deposit Company Of Maryland under the bond. DONE AND ENTERED this 20th day of April, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2000. COPIES FURNISHED: Michael A. Croak, Esquire 14229 U.S. Highway 441 Tavares, Florida 32778 Rena Weekly, Qualified Representative Allen’s Sod Service 8148 Southeast 147th Place Summerfield, Florida 34491 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue 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
Findings Of Fact Junior Martin, Petitioner, is a farmer d/b/a/ Junior Martin Farms in the State of Florida. Bastista Madonia is a farmer doing business in Florida and West Virginia and a licensed broker in Florida and packer of agricultural products d/b/a/ East Coast Brokers and Packers. Madonia holds Florida license no. 3906 supported by bond no. 743F4618 written by Travelers Indemnity Company as surety. In the summer of 1984 James DiMare, Bastista Madonia, and Junior Martin entered into a Farming Agreement (Exhibit 1) to establish a joint venture to grow cherry tomatoes in the fall 1984 farming season and, if successful, to continue this agreement into the spring season. Pursuant to this agreement approximately fifty (50) acres of tomatoes would be grown by Martin. DiMare and Madonia agreed to supply all plants and $500 cash per acre for which they would own 25 percent of the crop and the profits derived therefrom. East Coast Brokers (Madonia) was to supply picking bins and advance all picking money. Two dollars ($2) per package was to be charged for packing and thirty cents ($.30) per package for selling. Costs for growing the tomatoes was approximately $2,250 per acre. With their advance of $500 per acre and providing plants DiMare and Madonia financed approximately 25 percent of the growing cost of which they were to receive 25 percent of the profits. They were also to advance funds to harvest the tomatoes and deliver them to the packing house. In addition, Madonia paid for two (2) deliveries of tomato stakes to Martin's farm. The tomato crop planted in the fall of 1984 froze and was a total loss. DiMare then pulled out of the agreement. The agreement provided that if both parties are satisfied and things are going well by October 15, all parties will continue this venture by planting a spring crop. Madonia offered to contribute DiMare's share as well as his own for a spring Crop and Martin agreed to plant the spring crop. The spring crop was harvested from late March 1985 through late May 1985 (exhibit 4) at a profit. It is from this venture only that Martin bases his claim. In auditing the records, the Department of Agriculture investigator did not consider the transactions involving the fall crop because that had occurred more than nine (9) months before Martin's complaint. Section 604.21(1) Florida Statutes limits the time frame in which a complaint may be brought. Following the harvesting of the spring crop, Martin and Madonia went to Virginia to look into the feasibility of planting a summer crop in Virginia. They obtained suitable land to lease and, under a modification of their agreement, Madonia would put up most of the money required for the land, fertilizer, etc., and would be entitled to 50 percent of the profits. This venture was unsuccessful and resulted in a large loss, none of which has been paid by Martin. This endeavor was not included in the Department of Agriculture's audit because it occurred outside Florida and beyond the jurisdiction of the Florida Department of Agriculture. The parties discussed a fall 1985 crop after the debacle in Virginia and the Respondent advanced $10,000 to Petitioner for this crop (exhibit 16). This crop was never planted and the Petitioner has rendered no accounting for this advance. The endeavors by Madonia and Martin to grow fall and spring crops in Florida and a summer crop in Virginia were ongoing farming operations carried out pursuant to the Farming Agreement (Exhibit 1). As such, the endeavor was a joint farming venture with Martin providing the land (in Florida) and the farming expertise while Madonia provided plants and funds equal to one-fourth of the expenses and the marketing experience to sell the crops. Accordingly this endeavor was exempt from the provisions of Section 604.15-604.34 Florida Statutes, by Section 604.16(1) (Florida Statutes). The audit conducted by the Department of Agriculture (exhibit 6) showed Petitioner was owed $18,401.91 by Madonia as a buyer for the 1985 spring crop only. This figure does not include any advances over and above the $500 per acre advanced to Martin by Madonia for the fall crop 1984, or the advances for the Virginia operation in excess of the amount agreed to be provided by Madonia. Nor does this figure reflect the 25 percent of the profits due Madonia pursuant to the Farming Agreement. The amount Petitioner claims is owed to him by the Respondent for the spring crop is $60,632.86 (exhibit 7). This balance was prepared by Mrs. Martin from her records. Numerous checks endorsed by Petitioner which he received from Madonia were not included in those figures. Although cashed by Petitioner, they did not get into Mrs. Martin's bookkeeping records. Mrs. Martin acknowledged that she was not sure that she properly credited all of the checks she did receive from Madonia to the spring crop account. Accordingly, this figure is totally unreliable. Disregarding the fall 1984 crop and the Virginia episode, and accepting the Department of Agriculture's audit figures of $18,401.91 as the profits on the spring crops, 25 percent should go to Respondent pursuant to the Farming Agreement. This would leave $13,801.43 owed to Petitioner. From this should be deducted, at least, the $10,000 advance given to the Petitioner for the fall crop of 1985 which was never planted. The parties are engaged in civil litigation to resolve the disputes engendered by the farming activities above discussed. In those proceedings, all of the activities in which they participated pursuant to the Farming Agreement can be considered by the tribunal and resolved. Accordingly, that is the proper forum to resolve the disputes here in issue.
