The Issue The issues to be resolved in this proceeding concern whether the Respondent, Above All Lawn Care & Landscaping, Inc. (Above All), should be required to pay the sum of $7,129.05 to the Petitioner for landscape plants and materials allegedly purchased by the Respondent from the Petitioner, and, with regard to the Hartford Fire Insurance Company, whether it should be obligated for the payment of the plants and materials in question to the extent of its surety bond number 2 1BSBBU 6765 (the Bond), in the bonded amount of $4,999.00.
Findings Of Fact The Petitioner, Skinner Nurseries, Inc. (Skinner), is a corporation whose address is 2970 Hartley Road, Suite 302, Jacksonville, Florida. The Respondent Above All is a corporation whose address is Post Office Box 2772, Ocala, Florida. The Respondent was licensed as a dealer in agriculture products at times pertinent hereto and was supported by surety bond number 2 1BSBBU 6765, in the amount of $4,999.00. The surety bond was issued by the co- Respondent, Hardford Fire Insurance Company, as surety. The conditions and provisions of the bond were to assure proper accounting and payment to producers, their agents or representatives for agricultural products purchased by the Respondent, Above All. On July 23, 2003 through August 1, 2003, Skinner Nurseries, Inc. sold the Respondent certain nursery plants as an agent for Florida producers, totaling $7,129.05. That amount remains unpaid to Skinner. The subject complaint was filed with the Department within six months of the dates of sale. The only response to the complaint by the Respondent was that to the effect that it agreed that amounts were owed to Skinner, but it disagreed with the amounts Skinner was claiming. The testimony of Chris Diaz establishes that invoices in the amount of $7,129.05 represent the number of trees, shrubs, and various nursery stock or materials sold and shipped to the Respondent. The Petitioner sent statements on a monthly basis, as well as certified letters, to the Respondent and received no payment at all in return, not even as to an undisputed amount. The amount of $7,079.05 referenced in the Administrative Complaint does not include freight charges. The goods and materials in question were shipped from the Bunnell nursery site of Skinner to the Respondent's location in Ocala, Florida. The Respondent did not appear at either hearing scheduled and presented no testimony or evidence. The facts that are established by the Petitioner are thus undisputed. The Respondent has never paid any of the amounts represented by the subject invoices contained in Petitioner's Composite Exhibit 1 in evidence.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witness, it is, therefore, RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services requiring that Above All Law Care & Landscaping, Inc., pay the complainant Skinner Nurseries, Inc., the amount of $7,129.05, to be paid within fifteen days from the date of entry of a final order in this matter. In the event that the Respondent does not comply with that order then the surety, Hartford Fire Insurance Company, should be ordered to provide payment under the conditions and provisions of the applicable bond. DONE AND ENTERED this 27th day of December, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 27th day of December, 2004. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 01 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 01 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services Bureau of License and Bond 407 South Calhoun Street, Mayo Building Tallahassee, Florida 32399-0800 Daniel I. Lawrence, President Above All Landscaping Post Office Box 2772 Ocala, Florida 34471 Chris Diaz Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Scott Cochrane Hartford Insurance Company Hartford Plaza, T-4 Hartford, Connecticut 06115
The Issue Whether Murray Alter violated the provisions of Section 475.25(1)(a), and (2), Florida Statutes.
Findings Of Fact Murray Alter is a registered real estate salesman. Alter was employed by International Land Services Chartered, Inc. from 1974 to 1976 and received commission payments during that time from International Land Sales Chartered, Inc. Alter was a listing representative or "closer". Alter identified a letter signed by him to William Carey Hansard and stated that he (Alter) sent people he had contacted such letters. Hansard testified that Alter stated to him that Hansard's property could be sold easily. Hansard did not attribute any other representations to Alter and indicated that he had talked mostly with other salesmen. Hansard said Alter told him the primary means of selling the property would be by advertisement in a catalogue sent by International Land Services Chartered, Inc., to U.S. and foreign brokers. The deponents indicated that they had been contacted by a person who identified himself as Murray Alter. The McKays stated that the person identifying himself as Alter did not represent to them that International Land Services Chartered, Inc., had made other sales of property or that the company had ready buyers. They stated that the person identifying himself as Alter stated that their property would be easy to sell because there was a boom in Florida real estate. The McKays stated that the person who identified himself as Alter represented that International Land Services Chartered, Inc., would advertise their property in a catalogue which would be sent to U.S. and foreign brokers. Icard stated the person who identified himself as Alter contacted him, but did not represent that International Land Services Chartered, Inc. had made other sales or that the property could be sold immediately, or that the property could be sold at several times its price. Alter denied making any false representations to any of the persons whom he contacted. Alter explained his duties with International Land Services Chartered, Inc.
Recommendation Based upon the foregoing facts and conclusions of law, the Hearing Officer recommends to the Florida Real Estate Commission that no action be taken against the registration of Murray Alter as a real estate salesman. DONE and ORDERED this 7th day of March, 1978, Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel Oliver, Esquire Charles Felix, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Ronald L. Fried, Esquire 2699 S. Bayshore Drive Suite 400C Miami, Florida 33133 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION Petitioner, PROGRESS DOCKET NO. 2770 DADE COUNTY vs. DOAH CASE NO. 77-197 MURRAY ALTER, Respondent. /
Findings Of Fact Respondent, Store Realty Corporation (Store), a wholly owned subsidiary of Terra Investment Corporation (Terra) is a registered corporate real estate broker. Respondents Robert Pepper is president of Store, Donald Morton is a vice-president of Store and, at all times here involved, both were registered real estate brokers and Active Firm Members of Store. Terra entered into a brokerage agreement on December 8, 1975 (Exhibit 24), with Holly-by-the-Sea (Holly), a joint venture, which gave Terra exclusive right of sale of the land development project known as Holly-by-the-Sea. Holly is not a corporate entity and the project consists of a 4,000 acre tract located midway between Gulf Breeze and Ft. Walton Beach, bounded on the South by the Intracoastal Waterway and on the North by the eastern portion of Pensacola Bay. Store has been engaged in the sale of undeveloped land since its incorporation in 1970, and has generally conducted its operations by telephone sales solicitation to potential out-of-state buyers. During the period between its incorporation and the termination of its operations in 1977, Store has employed some 500 to 600 salesmen. In addition to being subject to Chapter 475, Florida Statutes, store, in selling undeveloped land, is regulated by the Division of Land Sales and Condominiums of the Department of Business Regulation of the State of Florida (Land Sales). Land Sales reviews all material proposed for use in selling undeveloped land and, upon approval, assigns an A.D. number. Using or mailing material not approved by Land Sales subjects violators to penalty of having its permit to sell undeveloped land revoked. Terra employed Store to conduct the sales of Holly property and, since the property was sold on a Contract for Deed with monthly payments, to maintain the records of payments and process delinquent accounts. Other brokers, viz, Urban Development and Sales (Urban), DKW Corporation and Land Masters all located at an address different from Store were also employed to sell Holly property. None of these brokers was owned or controlled by Store, but promotional material on Holly was provided to them by Store. All material to prospective purchasers was mailed by Store and signed contracts were returned to Store who disbursed commissions to these other brokers who in turn paid their salesmen. No evidence was submitted that any non-A.D. approved material was mailed to any prospective purchaser. Ira Cohen was employed by Urban as a telephone salesman from April 1976, until the end of January, 1977, when Urban ceased operations. He solicited sales of Holly property from mid-1977, until Urban closed. He then applied for a similar job at Store, and was interviewed by Respondent Morton who asked Cohen to recite the pitch he would use to sell Holly property. When Cohen did so he was told by Morton that some of the material recited was not A.D. approved and could not be used. Cohen agreed to use approved material and was tentatively employed. Respondent Morton was the day supervisor at Store and his brother, Byron Morton, was night supervisor. Two telephone rooms were provided at Store with 16 phone booths in each room and a desk for the supervisor near the center of each room provided with capability to monitor the conversations of the salesmen. Only one supervisor was present for both rooms. In each booth was posted the A.D. approved pitch and drive script. The first evening Cohen was to begin work he asked Byron Morton if he could use certain non-A.D. approved material Donald Morton had previously told him he could not use. Byron communicated this information to Donald who contacted Pepper and obtained permission to fire Cohen. This was accomplished early that evening. The following morning Cohen returned to the Store office and contacted Willard Natof, a vice president of Terra and Store, to reapply for a job. At this tine Cohen pleaded for a job and Natof called in Donald Morton to ask if he could properly train and supervise Cohen so Cohen could be hired. Cohen promised to follow the approved script and was employed. For the first week, Cohen made front calls which are the initial contact with a prospective buyer to ask if he is interested in receiving material on the investment aspects of Holly property. Those who indicate interest are sent various A.D. approved literature on the project and a sales contract. After the customer has had time to receive this material the drive call is made in which the hard sell is presented. There is an A.D. approved script for both front and drive calls. During his tenure at Urban, Cohen obtained two or three scripts which were not A.D. approved. These scripts included statements that Monsanto and St. Regis were going to expand into the area, that the recreation park at Holly contained 5 tennis courts, that the land adjacent to Holly was unavailable for development, that the rising costs of land in the vicinity made Holly an excellent investment for the development of multifamily units, that an access channel to the Gulf had been approved, there was a new shopping mall in the near vicinity, there were two recreation beaches attached to the project, that paved roads run throughout the project, and that an investor could surely resell his property at a profit in the near future. As a matter of fact, Monsanto and St. Regis have installations within 35 miles of Holly but neither has any planned expansion in the vicinity of Holly, two tennis courts were constructed, the only paved roads are near the entrance to the project, one recreation beach is available, a new and excellent shopping mall is located some 13.5 miles distant, the county approved a bond issue to provide an access channel at Navarre Beach but no permit for such construction will be granted by the State or federal government, Land Sales will not approve a script that contains specific statements respecting resale of the property at a profit, and no county zoning has been established for the Holly tract. All of the scripts, both approved and unapproved, contained the information that the buyer could rescind his contract at any time within 90 days and his money would be refunded; that he had 6 months within which to visit the site and, if he was not satisfied with his purchase when seen, he could rescind his contract and his money would be refunded; and that, upon a visit to Holly, he would be provided with motel accommodations for two nights as well as transportation to view Holly and the surrounding area. While using the material in a non-A.D. approved script, Cohen contacted Arthur Lord, an NBC executive from Texas who entered into a contract for deed. Thereafter, Lord with an NBC television crew prepared a documentary on the various misrepresentations that had been made with refutation of the access channel at Navarre Pass from the U. S. Corps of Engineers, refutation of Monsanto and St. Regis expansions from each of these companies, and on site camera coverage of the project. This documentary, and excerpts therefrom, received national exposure, both in the Today Show and other national news shows on or about March 1, 1977. Thereafter, Lord cancelled his contract to purchase and his $60 initial payment was refunded. Immediately thereafter, Store was investigated by Land Sales, FREC, F.B.I., and the Consumer Affairs Division of the Florida Attorney General's office. When Store learned of Cohen's misrepresentation, Cohen was fired. Due to the adverse publicity generated by the TV exposure, Store ceased operations involving the sale of Holly land prior to the emergency suspension complaint and the brokerage agreement to sell Holly property has been rescinded. Store is still maintaining the payment records for the land that was sold. At all times here involved, numerous sales meetings were held by Store officers and brokers who stressed the importance of using only A.D. approved material. All material mailed by Store to prospective buyers was A.D. approved. Such A.D. approved material included a colored brochure showing pictorially the location of Holly with respect to the communities in the area, military bases, recreational facilities and distances to larger southeastern United States cities; a copy of a newspaper clipping saying the County had approved a bond issue to open Navarre Pass; copy of a newspaper article about the opening of the Santa Rosa Mall; a copy of a newspaper article about the part of Florida between Pensacola and Jacksonville; a public offering statement filed by Holly; pictorial highlights of scenes at Holly; a property report with notice of disclaimer by interstate land sales registration, HUD; a copy of newspaper article regarding Florida growth; a copy of a newspaper article regarding the Panhandle of Florida; and sample Contracts for Deed. Land Sales investigators visited Store, and other so engaged, at frequent intervals to observe the operation and to see that only authorized material was being used. During the six months immediately preceding the sale to Lord and the resulting TV exposure, the investigators found only one other incidence of unauthorized material at Store or heard any unauthorized comments made in phone conversations. This was made by Arthur Levy, a salesman who had come to Store from urban the same time as Cohen. When the Land Sales investigator told the supervisor about Levy's use of unauthorized material, Levy was fired. At the hearing Levy acknowledged that he had been told he would be fired if unauthorized material was used in his sales presentation and that he had attended sales meetings where all salesmen present were told they would be fired if non-A.D. approved material was used. All witnesses who testified regarding their purchase of Holly lots and who gave notice of cancellation were refunded payments they had made. Some of these received a refund after they had visited the property and exchanged lots even though the contract did not provide for refund after that time. Nine depositions were admitted of persons buying lots at Holly upon telephone representation. Sharp was contacted by a salesman not working for Store and induced to buy upon the representation that the land could be resold at a profit. He had made one payment when he saw the Today show, and cancelled his contract. His money was refunded. Winebarger also bought a lot upon the representation of a salesman not working for Store that the land could be sold at a profit. He signed his contract with the intent to cancel the contract within 90 days if he could not resell at a profit. When he cancelled his money was refunded. Clements had no dealings with a Store salesman. He bought upon the representation that the property would appreciate in value and received no information that would lead him to suspect fraud. He considered the information received regarding Holly property to be fairer than that received from any other interstate land sales company who had contacted him. Perkins bought a lot upon the representation that he could sell the land for more than he paid and that Monsanto was expanding into the area. After visiting the property he exchanged his lot for another, made one additional payment before he cancelled the contract and received a refund of his payments. DuPont and wife were told Monsanto was expanding, bought a lot for investment purposes, inspected the property, exchanged lots and, prior to seeing the TV program, thought they had made a good investment. After seeing the TV program they cancelled their contract and received a refund. Beaudoin bought a lot upon representations that Monsanto, St. Regis and Westinghouse were coming into the area and that it was a good investment. He too, visited the property, exchanged lots, and, after seeing the TV program cancelled his contract and received a refund. He had previously bought land in other developments in Florida. Pyle was told that the canal was going through at Navarre pass which convinced him the property would be a good investment. When he cancelled his contract his money was refunded. Helsel bought upon the representation that the canal was going through. He visited the site after the TV exposure and like what he saw. He contacted the Department of Business Regulations and was told Navarre Pass was not going through. He then went back to Holly, cancelled his contract and his payments were refunded. For several years prior to Store ceasing operations, bulletin boards at Store held memos advising the salesmen to use only A.D. approved material in their pitches and that failure to do so would result in them being fired. Monitoring equipment was available in Respondent Pepper's office in addition to that available to the supervisor who was on duty at all times sales were being made. Officers at Store as well as many of the salesmen considered Holly to be the best property they had ever had in their inventory to sell by telephone solicitation. No evidence was presented that any salesman told a prospective customer that Bankers Life Insurance Company held a mortgage on Holly. However, when Store ceased selling Holly property the records were given to Magna Corp. which is owned by Bankers Life. The Holly representative at the site works for Magna. Store's Director of Customer Services who contacts delinquent buyers of Holly property very rarely received any complaints that they had been induced to buy by misrepresentation or by a salesman's use of material not in an approved script. The thrust of their complaints with delinquency was personal financial problems in making the payments. All salesmen who testified were told by Respondents to use only the material contained in the approved script. The primary function of the supervisor was to be available in case a prospective buyer started asking questions the answers to which were not contained in material that had received A.D. approval and to stop the salesmen from responding even if the response was true. No evidence was presented that prospective buyers were told no blacks were buying land. Some buyers were told there were few blacks in the area and no evidence was presented that this was not true. Those buyers who bought for investment purposes and visited the site considered they had made a good investment prior to seeing or learning of the TV program on Holly.
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 Respondent, Mo-Bo Enterprises, Inc., or its surety is indebted to Classie Sales, Inc. for agricultural products sold to Mo-Bo Enterprises.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence, the following relevant findings of fact are determined: Petitioner, Classie Sales, Inc., is a producer of agricultural products in Florida. Products which it produces include cucumbers, peppers, squash, and eggplant. Respondent, Mo-Bo Enterprises, is a dealer of agricultural products in the normal course of its business activities. Respondent, Mo-Bo Enterprises, is licensed by the Florida Department of Agriculture and Consumer Services and is bonded by Co-Respondent, Armor Insurance Company. Petitioner sold cucumbers, peppers, squash, and eggplant to Respondent, Mo-Bo Enterprises, between the period November 12, 1994 and December 23, 1994. Respondent was given a shipping manifest and sent an invoice for each shipment of agricultural products it ordered and received from Petitioner. The invoice stated that payment in full was due within 21 days of the invoice date and that "thereafter 1 percent additional for each 30 day period or portion thereof." Petitioner sent nineteen (19) invoices to Respondent, Mo-Bo Enterprises, during the time relevant to these proceedings. Each invoice represented the price and quantity of the products which was agreed to by Petitioner and Mo-Bo Enterprises. As of the date of the formal hearing, Respondent, Mo-Bo Enterprises, had paid two (2) of the nineteen (19) invoices it received from the Petitioner. The invoices for cucumbers sold on November 14, 1994, and September 14, 1994, in the amount of $2400.00 and $4613.50, respectively, were paid in full. The total amount paid to Petitioner by Respondent was $7013.50. The total amount invoiced by Petitioner to Mo-Bo Enterprises for agricultural products sold and shipped to Mo-Bo Enterprises, and which remain unpaid, is $66,053.00. In addition to this amount, in accordance with the terms stated on the invoices, Respondent owes Petitioner 1 percent of the amount of each invoice for each 30 day period or portion thereof that the balance remains unpaid. Despite repeated demands by Petitioner, and promises by Respondent, Mo- Bo Enterprises, to pay the outstanding balance, Mo-Bo Enterprises has not paid seventeen (17) invoices which total $66,053.00. As of the date of the formal hearing, this amount remains due and owing and unpaid.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order requiring Respondent, Mo-Bo Enterprises, Inc., or its surety, Co- Respondent, Armor Insurance Company, to pay Petitioner $66,053.00 plus an additional 1 percent of each invoice amount for each 30 day period or portion thereof that the payment remains outstanding. DONE and ENTERED this 17th day of October, 1995, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 17th day of October, 1995. COPIES FURNISHED: Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Mo-Bo Enterprises, Inc. P.O. Box 1899 Pompano Beach, FL 33061 Mark J. Albrechta, Esquire Legal Department Armor Insurance Company P.O. Box 15250 Tampa, FL 33684-5250 John Tipton Classie Sales, Inc. P.O. Box 1787 Bradenton, FL 34206 Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, FL 32399-0800 Charles Barnard, Esquire 200 SE 6th Street Ste. 205 Ft. Lauderdale, Florida 33301
The Issue Whether Redland Brokers Exchange, Inc., is owed $2,602.60 for agricultural products ordered by and delivered to Mo-Bo Enterprises, Inc.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Redland Brokers is an agent for producers of Florida-grown agricultural products. Mo-Bo is a dealer in such products in the normal course of its business and is bonded by Armor. During the period from October 28, 1994, until November 11, 1994, Mo-Bo ordered various agricultural products from Redland Brokers. In accordance with the usual practice of Redland Brokers when doing business with Mo-Bo, the orders were accepted by telephone and the items were loaded onto trucks sent by Mo-Bo to Redland Brokers's warehouse. Redland Brokers sent the following invoices to Mo-Bo for agricultural products order by and delivered to Mo-Bo: November19, 1994 Invoice Number 275 $180.00 November5, 1994 Invoice Number 290 756.00 November11, 1994 Invoice Number 319 793.00 November19, 1994 Invoice Number 334 353.60 November19, 1994 Invoice Number 338 520.00 TOTAL $2,602.60 Payment was due twenty-one days from the date each invoice was mailed. Despite repeated demands, Mo-Bo has not paid any of the amounts reflected in these invoices. As of September 6, 1995, the date of the formal hearing, $2,602.60 remained due and owing to Redland Brokers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order ordering Mo-Bo Enterprises, Inc., to pay $2,602.60 to Redland Brokers Exchange, Inc., and, if Mo-Bo Enterprises, Inc., does not pay this amount, ordering Armor Insurance Company to pay this amount, up to its maximum liability under its bond. DONE AND ENTERED this 10th day of October 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 10th day of October 1995. COPIES FURNISHED: Frank T. Basso, Jr., Owner Amy L. Glasow, Owner Redland Brokers Exchange, Inc. 401 North Redland Road Homestead, Florida 33030 Paul Boris Mo-Bo Enterprises, Inc. Post Office Box 1899 Pompano Beach, Florida 33061 Mark J. Albrechta, Esquire Armor Insurance Company Legal Department Post Office Box 15250 Tampa, Florida 33684-5250 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue Whether Respondent, Garrison Irrigation, Inc., failed to pay amounts owing to Petitioner resulting from a verbal contract for four pallets of Bahia sod as set forth in the complaint dated July 20, 2004, and, if so, what amount Petitioner is entitled to recover.
Findings Of Fact Based upon observation of the witness and her demeanor while testifying, the documents received into evidence, and the entire record of this proceeding, the following relevant and material findings of fact are determined: At all times material to this proceeding, Petitioner, C.M. Payne and Son, Inc., was a producer of agricultural products as that term is defined in Subsection 604.15(5), Florida Statutes (2004). At all times material to this proceeding, Respondent, Garrison Irrigation, Inc. (Garrison), was licensed as a dealer in agriculture products as that term is defined in Subsection 604.15(1), Florida Statutes (2004). Respondent was licensed under number 13653, supported by Bond No. 929237754 in the amount of $10,000; written by Respondent, Continental Casualty Company, as Surety (Continental); Inception Date: December 4, 2003; Expiration Date: December 3, 2004; and Execution Date: December 4, 2003. At all times material, Continental is the surety which issued Garrison a surety bond. On January 23, 2004, Petitioner sold 16 pallets of Bahia sod to Garrison and, on Invoice 20027, billed Garrison a total of $599.20 for the 16 pallets of sod. On January 26, 2004, Petitioner sold 32 pallets of Bahia sod to Garrison and, on Invoice 20033, billed Garrison a total of $1,198.40 for the 32 pallets of sod. On January 27, 2004, Petitioner sold 16 pallets of Bahia sod to Garrison and, on Invoice 20039, billed Garrison a total of $599.20 for the 16 pallets of sod. On February 2, 2004, Petitioner sold 16 pallets of Bahia sod to Garrison and, on Invoice 20044, billed Garrison a total of $599.20 for the 16 pallets of sod. The terms of the sale between Petitioner and Garrison were for net payment for products sold within 30 days after the invoice date. Garrison did not appear at the hearing to contest or otherwise refute the charges alleged in Petitioner's complaint. Garrison is indebted to Petitioner in the amount of $2,996.00 for Bahia sod purchases from Petitioner on January 23, 26, and 27, 2004, and February 2, 2004. Garrison has failed to pay Petitioner for the sod purchases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue its final order requiring that Respondent, Garrison Irrigation, Inc., pay to Petitioner, C. M. Payne and Son, Inc., the amount of $2,996.00 for the purchases of Bahia sod from Petitioner on January 23, 26, and 27, 2004, and February 2, 2004. It is further RECOMMENDED that if Respondent, Garrison Irrigation, Inc., fails to comply with the order directing payment, the Department shall call upon the surety, Continental Casualty Company, to pay over to the Department from funds out of the surety certificate, the amount needed to satisfy the indebtedness. DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2004.
