The Issue Whether Respondents are indebted to Petitioner in the amount of $18,330.00 for agricultural products (bahia sod).
Findings Of Fact Petitioner, McCullough Grass Corporation, is a producer of agricultural products and is located in Balm, Florida. Respondent, Landtech Services, Inc. (Landtech), is an agricultural dealer located in Largo, Florida. Co-Respondent, Western Surety Company, is a surety which issued Respondent Landtech a surety bond during times material. On April 19, 1993 and on May 18 and 19, 1993, Petitioner sold to Respondent Landtech 217,000 square feet of bahia sod for the total price of $18,330.00. The terms of the sale between Petitioner and Respondent Landtech were for net payment for products sold within thirty days after the invoice date. Respondent, Landtech, has paid Petitioner approximately $8,000.00 toward the purchase price of the sod leaving a balance now due and owing of $10,470.70. Respondents, Landtech and Western Surety Company, did not appear at the hearing to contest or otherwise refute the charges alleged in Petitioner's complaint. Respondent, Landtech, is indebted to Petitioner in the amount of $10,470.70 for bahia sod purchased from Petitioner during April and May of 1993.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Agricultural issue its final order requiring that Respondent, Landtech, pay to Petitioner the amount of $10,470.70 within fifteen (15) days of its final order. It is further RECOMMENDED that if Respondent, Landtech, fails to comply with the order directing payment, that the Department shall call upon the surety, Western Surety Company, to pay over to the Department from funds out of the surety certificate, the amount needed to satisfy the indebtedness. 1/ RECOMMENDED this 3rd day of March, 1995, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 3rd day of March, 1995.
The Issue The issue is whether Celebration Acres, Inc., or its surety, Florida Farm Bureau General Insurance Company, is liable for funds due Mike's Green Thumb, Inc., for the sale of agricultural products.
Findings Of Fact Petitioner is a Florida corporation with its principal place of business in Delray Beach, Florida, where it engages in the production of nursery stock. Mr. Michael Raimondi testified at the hearing on Petitioner's behalf. Respondent is a Florida corporation located in Coral Springs, Florida. At the time of the transactions which are the subject of this proceeding, Respondent was licensed as a dealer in agricultural products supported by Surety Bond Number BD 0692212 (the Bond) in the amount of $16,000. Respondent engages in the business of landscaping. Mr. David Urs testified at the hearing on Respondent's behalf. Co-Respondent is a corporation, licensed to do business in the state of Florida as an insurer. As surety, it provided the Bond for Respondent. The conditions and provisions of the Bond are to assure proper accounting and payment to producers for agricultural products purchased by Respondent. From October of 1993 through February of 1994, Petitioner sold nursery plants of its own production to Respondent at a sale price in the total amount of $14,562.35. The parties have done business together for over six (6) years. During that time, they have not established a course of performance or course of dealing regarding the terms of payment. In fact they have consistently argued over this point through out their business relationship. Respondent did not always send Petitioner a purchase order. When Petitioner received purchase orders, they consistently stated at the top that the terms of payment would be "net 30." However, on some occasions, the Respondent also stamped the purchase orders with the following additional payment terms: Terms of payment are per contract between general contractor and Celebration Acres, Inc.; and (b) Material sold by this purchase order once installed by Celebration Acres, Inc. belongs to the owner of the property where installed. Payment is due to supplier when payment is received by Celebration Acres, Inc. Suppliers are encouraged to protect themselves by sending a notice to owner. Regardless of whether Petitioner received a purchase order, it always sent Respondent an invoice stating that payment was due thirty (30) days after the date of invoice. The parties agree that subject invoices reflect the correct sale price for plants delivered and accepted. On or before October 11, 1993, Respondent bought 1343 Liriope and 132 Indian Hawthorne from Petitioner for a total sale price of $4,419.25. The express terms of payment for this sale was net in 30 days as set forth in Purchase Order No. 157 and Invoice No. 6504. Mr. Urs, Respondent's witness, testified that Purchase Order No. 157 is incomplete and that Respondent sent Petitioner a subsequent purchase order containing the additional payment terms referenced above in paragraph six (6). Mr. Urs' testimony is contrary to the more compelling testimony of Mr. Raimondi, Petitioner's witness. Respondent admits that it owes and has not paid Petitioner $4,419.25 for Invoice No. 6504. Payment for this invoice is past due. On or before December 16, 1993, Respondent sent Petitioner Purchase Order No. 193 for 200 Variegated Liriope. This purchase order contains the additional payment terms referenced above in paragraph six (6), i.e., payment was due pursuant to the terms of the contract between Respondent and the City of Oakland Park. Pursuant to this order, Petitioner delivered and Respondent accepted 230 plants as described in Respondent's Invoice Nos. 7528 and 7713 for a total sale price of $379.50. Respondent admits that it owes and has not paid Petitioner $379.50 for Invoice Nos. 7528 and 7713. Record evidence indicates that Respondent has completed its work for the City of Oakland Park. Additionally, there is no pending dispute over that contract; Respondent expected payment by May 26, 1994. Petitioner has met its burden of proof regarding Invoice Nos. 7528 and 7713. Respondent presented no evidence to show that payment is not due. Accordingly, payment for Invoice Nos. 7528 and 7713 is past due. On or about November 29, 1993, Respondent sent Petitioner Purchase Order No. 175 requesting shipment of various kinds of nursery stock. Respondent stamped this invoice with the terms referenced above in paragraph six (6). After receiving the order, Petitioner sent Respondent Invoice Nos. 7236 and 7408 reflecting a total sale price in the amount of $5,490.50. At the formal hearing, Respondent produced a copy of a Final Release of Lien signed by Petitioner's representative indicating that Petitioner received payment for Invoice Nos. 7236 and 7408. The release appears to bear an imprint of Petitioner's corporate seal. Petitioner asserts that Respondent never paid for Invoice Nos. 7236 and 7408. Mr. Raimondi, Petitioner's representative, occasionally signed a release before receiving funds so that a general contractor would pay Respondent, who promised, in turn, to pay Petitioner. Respondent faxed the subject release to Mr. Raimondi who signed it and faxed it back to Respondent. Someone at Respondent's office notarized Mr. Raimondi's signature. Respondent presented no evidence to show whether Petitioner ever received payment for Invoice Nos. 7236 and 7408. Respondent admits that it would occasionally request the execution of a release before paying Petitioner for plant material. Mr. Urs, Respondent's representative, testified that Respondent may have paid Petitioner in one of two ways: (a) by Respondent's check (company or certified); or (b) by the general contractor's check payable jointly to Respondent and Petitioner. The testimony of Mr. Urs, Respondent's representative, concerning the parties' execution of releases in general, and the subject release in particular, is contrary to the more compelling testimony of Mr. Raimondi, Petitioner's representative. Petitioner has met its burden of proving that payment for Invoice Nos. 7236 and 7408 is past due. On or about January 27, 1994, Respondent sent Petitioner Purchase Order Nos. 232 and 234 for assorted nursery plants. Both purchase orders contain the additional payment terms referred to in paragraph six (6) above. In response to these orders, Petitioner sent Respondent Invoice Nos. 8026 and 8027 for $660.75 and $612.35 respectively. Respondent admitted at the formal hearing that it owed Petitioner for Invoice Nos. 8026 and 8027 and that payment was past due. On or about February 14, 1994, Petitioner sent Respondent Invoice No. 8244 for 1500 Fern Sword listing the sale price in the amount of $3,000. Neither party produced a corresponding purchase order for this invoice and Petitioner did not recall receiving one. Mr. Urs, Respondent's representative, testified that Respondent owed Petitioner for Invoice No. 8244, but that payment is not due because Respondent has not received payment from the general contractor or the owner, Palm Beach County. Petitioner admits it has been in contact with the general contractor's bond company in an attempt to collect the debt. However, there is no persuasive record evidence that Petitioner ever agreed to defer payment until the general contractor or owner paid Respondent. Petitioner has met its obligation of proving that payment for Invoice No. 8244 is past due.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, I recommend that the Department of Agriculture and Consumer Services enter a Final Order directing Respondent and/or its surety and Co-Respondent to pay Petitioner $14,562.35. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22 day of December 1994. SUZANNE F. HOOD, Hearing Officer 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 21st day of October, 1994. COPIES FURNIHSED: Florida Farm Bureau General Insurance Company (Legal Dept.) Post Office Box 147030 Gainesville, Florida 32614 Michael Raimondi, President Mike's Green Thumb, Inc. Post Office Box 6279 Delray Beach, Florida 33445 David S. Urs, Vice President Celebration Acres, Inc. 3300 University Dr. #514 Coral Springs, Florida 33065 Richard Tritschler, Esquire Dept. of Agriculture & Consumer Services The Capitol PL-10 Tallahassee, Florida 32399-0810 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL - 10 Tallahassee, Florida 32399-0810
The Issue The issue is whether, as provided by the relevant statutes, Respondents owe Petitioner money for the sale of agricultural products.
Findings Of Fact At all material times, Petitioner, which is located in Homestead, Florida, has been a producer of agricultural products. At all material times, Respondent Small Indian Corporation (Respondent) has been a dealer in agricultural products. Respondent Cumberland Casualty and Surety Company, as surety (Surety), issued a bond to Respondent, as principal, in the amount of $27,600 for the period, November 26, 1999, through November 25, 2000. Surety also issued a bond to Respondent in the same amount for the following bond year. During the periods covered by this case, Petitioner sold to Respondent numerous avocados, limes, and papayas. The shipments were timely and conformed in quality and quantity to the orders. Petitioner timely issued invoices to Respondent for the sales of these agricultural products, but Respondent never paid any portion of these invoices. On May 25, 2001, Petitioner filed a complaint with the Department of Agriculture and Consumer Services (Department) for the period from November 22, 2000, through February 5, 2001. The Department required Petitioner to file separate complaints by bond year. Thus, Petitioner filed an amended complaint for $1190 for the bond year ending November 25, 2000, and an amended complaint for $54,591.25 for the bond year ending November 25, 2001. The date of the lone invoice within the bond year ending November 25, 2000, was November 22, 2000. The amended complaint concerning the bond year ending November 25, 2000, commenced DOAH Case No. 01-3320, and the amended complaint concerning the bond year ending November 25, 2001, commenced DOAH Case No. 01-3321. The allegations as to dates and amounts of invoices are all correct.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the amended complaint in DOAH Case No. 01-3320 and finding Respondent liable to Petitioner in DOAH Case No. 01-3321 for the sum of $54,591.25. DONE AND ENTERED this 5th day of November, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 5th day of November, 2001. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt Bureau Chief Bureau of License and Bond Department of Agriculture 514 East Tennessee Street India Building Tallahassee, Florida 32308 Carolann Swanson General Counsel Brooks Tropical, Inc. Post Office Box 900160 Homestead, Florida 33090 W. Sam Holland Hinshaw and Culbertson 200 South Biscayne Boulevard Suite 800 First Union Financial Center Miami, Florida 33131 Deborah A. Meek Cumberland Casualty and Surety Company 4311 West Waters Avenue, Suite 401 Tampa, Florida 33614
The Issue The issue in this case is whether Petitioner, Greg Davenport Enterprises, Inc., d/b/a Container Grown, is entitled to payment from an Agricultural Bond issued to Respondent, A.W. Kelley’s Gardens, Inc., and, if so, the amount owed to Petitioner.
Findings Of Fact Petitioner is a licensed producer of an agricultural product: Nursery plants and flowers. Petitioner is duly incorporated by the State of Florida and is in good standing. Greg Davenport is listed as Director and President of the corporation in the Division of Corporations’ web-based records. Respondent is a duly incorporated Florida corporation. Its business address is 6901 Hendry Creek Drive, Ft. Myers, Florida. The directors of the corporation are listed as Dixie Kelley, Drew Kelley, and Kent Kelley. Respondent is a plant retail business. Respondent has been a customer of Petitioner for many years, going back as far as 2006 according to evidence submitted at final hearing. During that time, Respondent has purchased approximately $91,000.00 worth of goods from Petitioner. (In its PRO, Respondent says the relationship goes back 25 years or more, but there was no sworn testimony to that effect.) During the period March 22 through May 24, 2012, Respondent ordered numerous items from Petitioner for which he was billed in accordance with standard practices. The following invoices provide the invoice number, date of invoice, and amount of purchase: Invoice 1399 - March 22, 2012 - $1,570.00 Invoice 1818 – March 27, 2012 - $2,105.00 Invoice 1391 – April 10, 2012 - $1,130.00 Invoice 1303 – April 25, 2012 - $ 850.00 Invoice 1419 – May 16, 2012 - $1,145.00 Invoice 1431 – May 24, 2012 - $1,175.00 TOTAL - $7,975.00 Petitioner contacted Respondent on numerous occasions to request payment on the outstanding invoices. Those efforts were in vain. At first, Respondent would make empty promises to pay, but ultimately just refused to accept Petitioner’s calls. Meanwhile, Respondent’s owner relocated to North Carolina, causing Petitioner to fear that payment may never be forthcoming. Respondent made some promises to make payments “whenever he could” to satisfy the debt. He said, however, that even if he could not pay, Petitioner should not attach his agriculture bond. Respondent’s failure to make any promised payments was the basis for Petitioner seeking payment by way of the bond. Respondent does not deny his failure to pay the outstanding invoices. He does not dispute that the products he received were of acceptable quality. He does, in fact, admit his indebtedness to Petitioner. Respondent does not feel his bond should be attached for payment of this debt. He cites, as reasons, that: 1) his business suffered during the national financial crisis; 2) there was some embezzlement going on in his business that affected his ability to pay obligees; 3) there is a related civil lawsuit underway in circuit court relating to the embezzlement; and 4) Davenport and Kelley have been friends for a long time and thus he should be allowed more time to pay the invoices. Respondent’s PRO sets forth other bases for why he believes it would be improper to attach his agriculture bond. However, none of those bases was addressed by sworn witnesses at final hearing and are thus not evidence in this case. Further, Respondent contends that two witnesses he subpoenaed but failed to show up for final hearing prejudiced his case. He did not prove, however, that either of the supposed witnesses had been properly served. Respondent’s PRO also sets forth facts not elicited through testimony or documentary evidence during final hearing. Respondent relies in part on various documents exchanged between the parties during discovery, but none of those were offered into evidence and thus are not part of the record. Respondent acquired a bond through Suretec Insurance Company. The amount of the bond was not disclosed at final hearing but, per statute, must be at least $5,000.00. The surety company was not represented at final hearing. No defense was raised by the surety company concerning Petitioner’s attempt to attach the bond. Petitioner is entitled to payment in the amount of $7,975.00 for the products it provided to Respondent. Besides the amount set forth above, Petitioner claims the sum of $100.00 paid for the filing of his two claims against Respondent’s bond. The total sum owed to Petitioner by Respondent is $8,075.00.
Recommendation Based upon the findings of fact and conclusions of law set forth above, it is hereby RECOMMENDED that: Respondent shall pay to Petitioner, within 15 days of the entry of the Final Order, the sum of $8,075.00; If Respondent fails to timely make the aforementioned payment, the Department shall call upon Suretec Surety Company to pay over to the Department the full amount of Respondent’s bond; and The Department shall then turn the proceeds of the bond over to Petitioner to satisfy the debt that has been established. DONE AND ENTERED this 26th day of March, 2013, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2013. COPIES FURNISHED: Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Michael Cronin SureTec Insurance Company Suite 320 9737 Great Hills Trail Austin, Texas 78759 Greg Davenport Greg Davenport Enterprises, Inc. d/b/a Container Grown 613 Corbel Drive Naples, Florida 34110-1106 Kent O. Kelley A. W. Kelley’s Gardens Inc. 6901 Hendry Creek Drive Fort Myers, Florida 33908 Lorena Holley, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Adam Putnam Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue At issue is whether petitioner's request for a bond waiver under the provisions of Section 559.927(10)(b)5, Florida Statutes, should be approved.
Findings Of Fact Petitioner, Consolidated Cruises and Tours, Inc., is a "seller of travel," as that term is defined by Section 559.927(1)(a), Florida Statutes, and was formed in April 1993 by Steven Wolf, its president, to carry on the travel business he had previously operated through Consolidated Cruises, Inc., since October 1987. Effective October 1, 1988, Chapter 88-363, Laws of Florida, codified at Section 559.927, Florida Statutes (1989), required sellers of travel to register with the Department, and to post an annual performance bond. Failure to register with the Department or to conduct business as a seller of travel without the required bond was a violation of law, and subjected the person or business to civil and criminal penalties. Consolidated Cruises, Inc., the business through which Mr. Wolf was operating at the time, did not register with the Department as a seller of travel until November 1, 1991. Effective October 1, 1993, Chapter 93-107, Section 1, Laws of Florida, amended Section 559.927, Florida Statutes, to provide that: The department may waive the bond requirement in this subsection if the seller of travel has had 5 or more consecutive years of experience as a seller of travel in Florida. . . . On or about May 25, 1994, petitioner filed an application for registration as a seller of travel with respondent, Department of Agriculture and Consumer Affairs (Department), and requested a waiver of the annual performance bond requirement. Pertinent to this case, the request for waiver described the history of Consolidated Cruises, Inc., and Consolidated Cruises and Tours, Inc., as follows: Consolidated Cruises Inc. was established on 10/1/87 as a company that promoted cruises. The sales for the company was minimal for the first 2 years. The principal stock holder was Steven Wolf (100 percent). In March of 1990 Consolidated Cruises added 3 new major stock holders to the company and split the company stock as follows: Steven Wolf - 25 percent Miriam Wolf - 25 percent Yoav Tavory - 25 percent Judy Tavory - 25 percent In April of 1993 Consolidated Cruises ceased to function since the major stock holders had a disagreement as to the dissolution of the company. In the interim, to keep the company going a new corporation was formed by Steven Wolf & Miriam Wolf called, "CONSOLIDATED CRUISES & TOURS INC. For all practical purposes, the company continued to work the same as before but under the auspices of a new company name. In all the years that we have been providing our services, we have never had ONE complaint. On the basis of our past performance, we request that you waive the requested security bond of $10,000. Our previous registration number for CONSOLIDATED CRUISES INC. are as follows: certificate of registration No: 11347 certificate No. 00283 By letter of June 16, 1994, the Department denied petitioner's request for bond waiver. Such denial was premised on the Department's interpretation of Section 559.927, Florida Statutes, as allowing a waiver of the bond requirement only when the "seller of travel has had 5 or more consecutive years of experience as a seller of travel in Florida" that was lawfully obtained, i.e., that such experience occurred while the person or business was duly registered with the Department as required by law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered denying petitioner's request for a performance bond waiver. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of January 1995. WILLIAM J. KENDRICK 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 18th day of January 1995. APPENDIX Respondent's proposed findings of fact are addressed as follows: Addressed in paragraph 4. Addressed in paragraph 4, otherwise not relevant. See, paragraph 9. 3-5. Addressed in paragraph 6, otherwise unnecessary detail. 6. Addressed in paragraph 3, otherwise unnecessary detail. 7 & 8. Addressed in paragraph 5. 9. Addressed in paragraphs 4 and 5. 10 & 11. Addressed in paragraph 6. 12. Rejected as not relevant since the Department did not specify such reason as a basis for denial in its letter of June 16, 1994, did not seek to amend its reasons for denial prior to hearing, and did not raise such issue until after petitioner had presented its case-in-chief. See paragraph 9. COPIES FURNISHED: Steven Wolf, President Consolidated Cruises and Tours, Inc. 8181 Northwest 8th Manor Plantation, Florida 33324 Jay S. Levenstein, Esquire Department of Agriculture and Consumer Services Room 515 Mayo Building Tallahassee, Florida 32399-0800 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL - 10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture The Capitol, PL - 10 Tallahassee, Florida 32399-0810
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a Florida corporation. It was incorporated on September 10, 1991. On August 25, 1995, it was administratively dissolved for failure to file its annual report. It has not been reinstated. At present, Petitioner has no assets. Its liabilities exceed $250,000.00 and include a judgment against it in the amount of $11,857.00 (plus interest) and numerous unpaid bills. Before its demise as an active corporation, 3/ Petitioner was a provider of travel services. It was registered as a "seller of travel" with the Agency in 1992 (from January 1 to December 31) and in 1993 (also from January 1 to December 31), during which time it held Seller of Travel Registration Number 14223. As part of the registration process, Petitioner posted with the Agency a $10,000.00 performance bond effective for the one year period commencing November 19, 1991 (the 1991-92 Performance Bond) and another $10,000.00 performance bond effective for the one year period commencing November 19, 1992 (the 1992-93 Performance Bond). 4/ The surety on these two performance bonds (the 1991-92 Performance Bond and the 1992-93 Performance Bond) was the Hartford Fire Insurance Company (the Hartford). Edward Volz, in his capacity as Petitioner's President, signed an indemnity agreement obligating Petitioner to indemnify the Hartford for any payments made by the Hartford "by reason or in consequence of its suretyship." 5/ Consumer claims against Petitioner were received by the Agency. By letter dated February 28, 1994, the Agency advised Petitioner of these "claims on the above referenced security" and of the Agency's intention "to make a demand under its [the security's] terms." By letter to the Hartford dated February 28, 1994, the Agency made "a demand on the surety bond." 6/ The letter read as follows: This is to notify your company that the Department of Agriculture and Consumer Services is in possession of claims made by persons who purchased travel-related services from the above-mentioned seller of travel [Petitioner]. This bond was issued by your company to secure the services of the seller of travel or to provide a refund to those customers who do not receive the services purchased. Please accept this letter as a demand on the surety bond. We would appreciate your advising this office in writing within fifteen (15) days from the date of this letter as to the form and information you require in order to make payment pursuant to the bonded obligation. If you have any questions please contact me at 904-922-2972 or Mr. Wayne Searcy, 904-922-2920. In or around March of 1994, Petitioner filed an application with the Agency to renew its "seller of travel" registration. In conjunction with the filing of its application, Petitioner posted with the Agency a $25,000.00 performance bond effective for the one year period commencing November 19, 1993 (the 1993-94 Performance Bond). The surety on the bond was the Hartford. 7/ By letter dated June 22, 1994, the Agency notified Petitioner that Petitioner's application for renewal of its registration had ben denied for failure "to provide a financial statement prepared by an independent public accountant." After receiving the Agency's June 22, 1994, letter, Petitioner discontinued its business operations. Having received additional claims against Petitioner since it had sent its February 28, 1994, demand letter to the Hartford and not having received any response from the Hartford to that letter, the Agency sent a second letter, dated September 29, 1994, to the Hartford. The letter read as follows: Subject: Excell Travel Club, Inc. 1239 East Newport Ctr., [Number] 113 Deerfield Beach, Florida 33442 Surety Bonds [Number] 41770-77 ($25,000) and [Number] 41770-77 ($10,000) Effective November 19, 1993/ Effective November 19, 1992 Dear Sir: The Department of Agriculture has claims exceeding the amount of the bonds [the 1992- 93 Performance Bond and the 1993-94 Performance Bond] from persons who purchased travel-related services from the above- mentioned seller of travel [Petitioner]. Therefore, the Department of Agriculture is making a demand on the bonds. The bonds were issued by your company to secure the services of the seller of travel or to provide a refund to those customers who do not receive the services purchased. Please accept this letter as a follow up demand on the surety bonds. We would appreciate your advising this office in writing within ten (10) days from the date of this letter as to the form and infor- mation you require in order to make payment to the bonded obligation. If you have any questions please contact me at 904-922-2820. A copy of this letter was sent to Petitioner. The Hartford sent a letter, dated October 18, 1994, to the Agency acknowledging receipt of the Agency's September 29, 1994, letter. Subsequently, the Hartford sent a second letter, dated November 2, 1994, to the Agency. The letter read as follows: RE: Our file: 319 S 26747 and 319 S 26748 Principal: Excell Travel Club, Inc. Dear Mr. Cloud: Enclosed are our checks totalling $35,000.00 which are in settlement of the two surety bonds with effective periods 11/19/92 to 11/19/93 and 11/19/93 to 11/19/94. Please acknowledge receipt of these two checks and acknowledge that our bonds are exonerated. Thank you for your advices concerning these matters. Appearing on both of the two checks that were enclosed with the Hartford's November 2, 1994, letter was the notation, "full and final settlement." Each of the checks also had a "loss date" written on it. The "loss date" written on the $10,000.00 check was November 18, 1993. The "loss date" written on the $25,000.00 check was September 29, 1994. Petitioner had no advance notice that the Hartford was going to make a "settlement" with the Agency. By letter dated May 17, 1995, the Agency advised Petitioner of its intention "to make distribution of the entire bond proceeds to the claimants on a pro rata basis." Thereafter, Petitioner filed a petition requesting an administrative hearing on such proposed action. Petitioner has not repaid any of the $35,000.00 that the Hartford paid the Agency for the benefit of those who filed claims against Petitioner, nor has the Hartford instituted legal proceedings to require Petitioner to indemnify it for having made such payment to the Agency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency enter a final order dismissing, on the ground of lack of standing, Petitioner's petition requesting an administrative hearing on the Agency's proposed action to distribute the proceeds of the 1992-93 and 1993-94 Performance Bonds to claimants on a pro rata basis. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of October, 1996. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1996.
