The Issue Whether Len-Tran, Inc., d/b/a Turner Tree and Landscape (Respondent or Len-Tran, Inc.), or its surety company, Great American Insurance Company, is liable to Hibernia Enterprises, LLC, d/b/a Hibernia Nursery (Petitioner or Hibernia), for $16,139.33 in agricultural products delivered to Respondent, plus the $50.00 filing fee for this action.
Findings Of Fact Petitioner is a Florida limited liability company, whose principal address is 1176 C-478A, Webster, Florida 33597. Petitioner is a producer of agricultural products as defined by section 604.15(5). Petitioner grows and supplies shrubs, trees, and ground covers. At all pertinent times, Respondent, a Florida for- profit corporation, has been a dealer in agricultural products as defined in section 604.15(1), with a principal address of 2504 64th Street Court East, Bradenton, Florida 34208. Respondent has been doing business as, and is the registered owner of, the fictitious name “Turner Tree and Landscape.” Respondent’s president is Darrell Turner and its registered agent is Peter Mackey, Esquire, with the Mackey Law Group in Bradenton, Florida. Darrell Turner is also listed as the president of Turner Tree Farm, Inc., a Florida for-profit corporation, whose principal address is also 2504 64th Street Court East, Bradenton, Florida 34208. Turner Tree Farm, Inc.’s, registered agent is the Mackey Law Group in Bradenton, Florida. During all relevant time periods, Great American Insurance Company, 301 East 4th Street, Cincinnati, Ohio 45202, has been the surety company providing agricultural surety bonds for both Len-Tran, Inc., and Turner Tree Farm, Inc., in favor of the Department as obligee. The agricultural surety bond provided by Great American Insurance Company for Len-Tran, Inc., is Bond No. 3118082. The agricultural surety bond provided by Great American Insurance Company for Turner Tree Farm, Inc., is Bond No. 3118081. From July 20 through August 21, 2015, Petitioner delivered $16,139.33 worth of agricultural products to Len-Tran, Inc. These products were accepted, yet Len-Tran, Inc., has not paid for these products. All of the underlying purchase orders from Respondent to Petitioner for the subject agricultural products, which were delivered and invoiced to Respondent, were prepared on letterhead, entitled "Turner Tree and Landscape, 2504 64th Street Court East, Bradenton FL 34208." Petitioner’s Claim, setting forth the basis of Petitioner's claim against Respondent and its surety, was filed with the Department on November 13, 2015, which is less than six months from the deliveries that form the basis of the claim. Petitioner's Claim listed "Turner Tree and Landscape" on line six of the Agricultural Products Dealer Claim Form, labeled "Legal name of Respondent (Dealer)." The following examples are printed in a parenthetical appearing under line six of the form: "Individual's name, partners names, corporate name, co-op, etc." On line seven of the form, labeled "Trade name of Respondent (d/b/a, fictitious name, etc.)," Petitioner wrote "N/A." Although Petitioner listed "Turner Tree and Landscape" on the wrong line of the form, Petitioner's listing of Turner Tree and Landscape as the “respondent” on the form did not constitute a filing against Turner Tree Farm, Inc. The Department, not Petitioner, decided to serve Petitioner’s Claim on Turner Tree Farm, Inc., instead of Len-Tran, Inc. That decision turned out to be incorrect because “Turner Tree and Landscape” is the fictitious name of Len-Tran, Inc., not Turner Tree Farm, Inc. Nevertheless, the Department served Petitioner’s Claim on Turner Tree Farm, Inc., and Great American Insurance Company on December 9, 2016. Petitioner's Corrected Claim was filed by facsimile with DOAH on February 19, 2016. There is a cover letter to Petitioner's Corrected Claim addressed to the undersigned at DOAH. The cover letter was apparently left off of the facsimile of Petitioner's Corrected Claim that was filed with DOAH because it does not appear on the DOAH docket for this case. The cover letter was received into evidence at the final hearing as the first page of Petitioner's Exhibit P-5. The cover letter, also dated February 19, 2016, states: Case No. 16-0278 Hibernia Enterprises, LLC vs. Turner Tree and Landscape and Great American Ins. Your Honor: When we filled out the paperwork to place a claim on Turner Tree and Landscape's ag bond on the first page #6 Legal name - we printed Turner Tree and Landscape not Len-Tran Inc. Can we please correct #6 and #7 so it states: Legal name of Respondent (Dealer): Len- Tran, Inc. Trade name of Respondent (d/b/a, fictitious name, etc): Turner Tree and Landscape I have enclosed a copy of the original first page filed, corrected first page how it should read and Turners Answer of Respondent. Sincerely, David Counihan President Certificate of Service: Copy emailed and faxed to: Len-Tran, Inc., d/b/a Turner Tree and Landscape In addition to filing Petitioner's Corrected Claim in this case on February 19, 2016, after the final hearing, Petitioner also filed Petitioner's Corrected Claim with the Department on July 6, 2016. Thereafter, as reflected on correspondence from the Department to the undersigned filed in this case on July 11, 2016, as well as attached to Petitioner's Memorandum, the Department served copies of Petitioner's Corrected Claim on Len-Tran, Inc., and Great American Insurance Company by mail on July 7, 2016 (the date of the correspondence). The correspondence attached a copy of the Agricultural Products Dealer Bond No. 3118082, in the amount of $100,000, issued in favor of the Department, as obligee, by "Len-Tran, Inc. dba Turner Tree & Landscape," as principal, and by Great American Insurance Company, as surety. A "Change Rider," was also attached, showing an effective date of the Len-Tran, Inc.'s, bond from July 6, 2015, through July 5, 2016. Since the filing of this case at DOAH, copies of all Orders entered in this case have been provided to Respondent and Great American Insurance Company, and all pleadings and filings in this case have been available for view on DOAH’s website. Respondent, Len-Tran, Inc., d/b/a Turner Tree and Landscape filed Chapter 11 bankruptcy on May 13, 2016. While the automatic stay imposed by federal bankruptcy laws protects Respondent from certain actions during and after its bankruptcy, Great American Insurance Company, as surety for Respondent, is not alleviated from responsibility of payment of the claim, even though Respondent filed bankruptcy.
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 finding that $16,189.33 ($16,139.33, plus the $50 filing fee) is the amount of indebtedness owed to the Petitioner under either Petitioner's Claim or Petitioner's Corrected Claim, and requiring Great American Insurance Company to pay that amount to the Department to be distributed to Petitioner out of the bond posted by Great American Insurance Company for Len-Tran, Inc. DONE AND ENTERED this 2nd day of December, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 2nd day of December, 2016.
Findings Of Fact Petitioner, Pat LaFratta, applied for a Bail Bond Runner's License, which application was sworn to and subscribed on the 11th day of June, 1978. Petitioner had previously, on July 9, 1976, submitted an application for professional Bail Bondsman. The Respondent, by letter from the Chief of the Bureau of Licensing, Mrs. Onez O'Neal, dated August 31, 1978, informed Mr. LaFratta that his application for Bail Bond Runner's License was denied and stated that "the investigation conducted by this Department reflects that you do not meet the qualifications as set forth in Sections 648.27(2)(4), and 648.34(2)(f), Florida Statutes." The Petitioner requested an administrative hearing. A deposition of Howard Paul Sabin, who was at the time imprisoned for bribery, was entered into the evidence without objection. The deposition was taken at the Hendry Correctional Institute in Immokalee, Florida, on December 20, 1978, by counsel for the Respondent after Respondent had denied Petitioner's application for licensure. Counsel for the Petitioner, Herb Fried, Esquire, 1461 NW 17th Avenue, Miami, Florida 33125, and the Petitioner, Pat LaFratta, were present. Sabin's testimony was that the Petitioner, whom he identified at the taking of the deposition, shared commissions in performing bail bond activities and that Petitioner acquiesced and participated in bribing a police officer. Mr. Sabin testified that Mr. LaFratta used LaFratta's apartment as an office. Telephone calls were made from the apartment to call the jail and speak to people to see if Sabin could help them make bond while only Sabin, not Mr. LaFratta, was licensed. Sabin testified that the name of the agency was AABBEE Bail Bonds and that LaFratta paid Sabin a percentage of bonds solicited by Mr. Sabin and referred to Mr. LaFratta. The time frame Sabin testified about was approximately from September of 1975, to December of 1975. The Petitioner's attorney questioned Sabin about any promises made to him for his testimony and about other bondsmen, but there were no questions or contradictions by Petitioner or his attorney as to testimony concerning the subject of this hearing. A yellow page from a Southern Bell Telephone and Telegraph Company Directory, dated 1976, was submitted into evidence in which there was an advertisement "Bail Bonds, 24-Hour Service Any Court - State, Federal, Criminal, Narcotic - Pat LaFratta, Manager - AABBEE Bail Bonds" and a telephone number. Also submitted into evidence was a copy of a business card "AABBEE Bail Bonds - Pat LaFratta - 24-Hour Service" with the same telephone number as advertised in the yellow pages of the 1976 telephone directory. It is obvious upon examination that the telephone advertisement and card were advising the public using the directory that Petitioner LaFratta was in the bail bond business. Petitioner was not then licensed. On the application for Bail Bond Runner's License of June 11, 1978, Question 14: "Have you ever been charged with or convicted of a felony?" was answered "Yes." The remainder of the question stated: "If so, complete the following and submit a full and detailed report on a separate sheet." This was answered: "1970 - Broward Cty. Ct. - Ft. Lauderdale, Fl. - Poss. Stolen Prop. - 23 counts, 1 yr. cty. jail 2-5 yrs. probation conc." Petitioner listed no other charges or convictions on the application or on a separate sheet. Respondent submitted in defense of its denial a number of exhibits which were entered into evidence as follows: Exhibit 3(a) concerns the offense of receiving stolen property and is dated October 20, 1969. The solicitor announced a Nolle Prosequi, and the Judge released Petitioner from custody. Exhibit 3(b) concerns the offense of receiving stolen property and is dated October 23, 1967. The solicitor announced a Nolle Prosequi. Petitioner was released from custody. Exhibit 3(c) concerns the offense of auto theft and is dated April 4, 1969. The solicitor announced "No Information," and the Respondent was released from custody. Exhibit 3(d) concerns the offense of uttering a forged instrument and is dated June 30, 1971. The solicitor announced a Nolle Prosequi, and the Judge released Petitioner from custody. Exhibit 3(e) concerns the offense of two counts of receiving stolen property and is dated April 5, 1971. The solicitor announced a Nolle Prosequi. The Judge released the Petitioner from custody. Exhibit 3(f) concerns the offense of receiving stolen property and is dated January 22, 1969. Petitioner was acquitted by a jury and released from custody. Exhibit 3(g) concerns the offense of receiving stolen property and is dated April 5, 1971. The solicitor announced a Nolle Prosequi, and the Judge released Petitioner from custody. Exhibit 3(h) concerns the offense of receiving or aiding in the concealment of parts of a 1968 Chevrolet Impala and is dated October 31, 1969. The State was allowed 30 days to amend because of the vagueness of the charge. Exhibit 3(i) concerns the offense of receiving stolen property and is dated April 5, 1971. The solicitor announced a Nolle Prosequi, and the Judge released Petitioner from custody. Exhibit 3(j) concerns the offense of aggravated assault and is dated October 27, 1967. The Hearing Officer finds that Petitioner was not the defendant in said case. Exhibit 3(k) concerns the offense of receiving stolen property and is dated December 13, 1968. Petitioner was acquitted by a jury and released from custody. Exhibit 3(l) concerns the offense of receiving stolen property arid is dated October 1, 1969. The Petitioner was acquitted by the court and released from custody. Exhibit 3(m) concerns the offense of receiving stolen property and is dated June 25, 1968. The Petitioner was acquitted by the court arid released from custody. Exhibit 3(n) concerns the offense of assault and battery, a misdemeanor, and is dated October 30, 1967. Exhibit 3(o) is a judgment and sentence for the crime of receiving stolen property and is dated October 5, 1971. Petitioner was placed on probation for five years. Exhibit (p) is a judgment and sentence dated April 5, 1971. Petitioner was sentenced to one year in prison and an assessment. Exhibit 3(q) concerns the violation of parole. Respondent's Exhibit 3(e), (g), (i), (o), and (p), supra, are part of a 23-count information which was submitted as Petitioner's Exhibit #6 in Case No. 70-25492, an information for Receiving Stolen property. Respondent's Exhibit 3(a), (b), (c), (d), (f), (h), (k), (l), and (m), supra, refer to felony charges of receiving stolen property, uttering a forged instrument and auto theft, which were not listed on the Petitioner's application and were not part of the 23-count information, which information concerned receiving stolen property. Exhibit 3(a), (b), (f), (k), (l), and (m), supra, concern stolen property preceding the dates of the offenses mentioned in the 23-count information. The failure to list the foregoing felony charges shows the Petitioner made material misstatements on his application. Petitioner LaFratta testified that he sent a package regarding the 23 counts mentioned in Findings of Fact No. 3, supra, with both application for Professional Bail Bondsman and for subject license to the Respondent. His testimony was not backed by evidence that he in fact sent the materials to the Respondent, which were required to have been sent at the time the application was made and listed on his application. His testimony that he had requested the clerk to "make out a whole booklet on everything that pertains to me," if true, was not adequate to truthfully answer Question 14, Findings of Fact No. 3, supra. The Hearing Officer finds that Petitioner did not furnished a full and detailed report and information as required by Question 14. It is the finding of the Hearing Officer that Petitioner did not intend to furnish the required information. Petitioner testified that he did not think that he had ever been arrested for assault, but the Respondent presented evidence showing that Petitioner had in fact been arrested for assault and battery. On subject application the Petitioner also failed to fully answer the question as to his employment history for the past five years. He failed to disclose that he had worked for Abel Bail Bonds. On the question as to his residence for the past five years, Mr. LaFratta failed to show that he had been incarcerated at Florida State Prison during that period of time. The herein mentioned 23-count information and the Restoration of Civil Rights were certified in June of 1976, and application for Professional Bail Bondsman was submitted in July of 1976. It is the finding of this Hearing Officer that these instruments were the only information submitted by the Petitioner to the Respondent as to his charges and convictions, despite his testimony. The certificate of Restoration of Civil Rights to Pat LaFratta, dated June 8, 1976, was previous to the application for Bail Bond Runner's License sworn to and subscribed by the Petitioner on June 11, 1978, and to the application for Bail Bondsman sworn to and subscribed by the Petitioner on July 9, 1976. The certificate of Restoration of Civil Rights is dated June 8, 1976, and within a few weeks thereafter Petitioner failed to truthfully answer questions under oath on his application on July 9, 1976, and failed to fully and truthfully answer the question on his application for Bail Bond Runner's License of July 11, 1978.
Recommendation Reject the application of Petitioner, Pat LaFratta, for a license as a Ball Bond Runner. DONE and ORDERED this 29th day of March, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1979. COPIES FURNISHED: Patrick F. Maroney, Esquire Florida Department of Insurance Legal Division 428-A Larson Building Tallahassee, Florida 32301 Max P. Engel, Esquire 1461 North West 17th Avenue Miami, Florida 33125
