03-003538 Skinner Nurseries, Inc. vs. A And R Landscaping And Lighting, Inc. And Old Republic Surety Company Status: Closed Recommended Order on Thursday, December 18, 2003.

Summary: The Respondent dealer failed to pay for agricultural products bought from the producer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SKINNER NURSERIES, INC., )

)

Petitioner, )

)

vs. ) Case No. 03 - 3538

)

A & R LANDSCAPING & LIGHTING, )

INC., AND OLD REPUBLIC )

SURETY COM PANY, )

)

Respondents. )

_ )

RECOMMENDED ORDER

Notice was provided and on November 21, 2003, a formal

hearing was held in this case. The authority for conducting

the hearing is se t forth in Sections 120.569 and 120.57(1),

Florida Statutes (2003). The hearing was conducted by video -

teleconferencing between sites in Jacksonville and

Tallahassee, Florida. The hearing was held by Charles C.

Adams, Administrative Law Judge.

APPEARA NCES

For Petitioner: Christopher Diaz, C.P.A.

Skinner Nurseries, Inc.

2970 Hartley Road, Suite 302

Jacksonville, Florida 32257

For Respondents: No appearance

STATEMENT OF 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?

PRELIMINARY STATEMENT

On July 10, 2002, Skinner, through Donald M. Dumond,

C.F.O., made a complaint to the Florida Department of

Agriculture and Consumer Services (the Department) in

accordance with the law perta ining to transactions between

producers and dealers in agricultural products. §§ 604.15

through 604.30, Fla. Stat. (2002).

The complaint by Skinner as producer was made against A &

R as a dealer in agricultural products. The complaint amount

was $27,938.86. The complaint described deliveries of

agricultural products to a person affiliated with A & R, after

inspection and in accordance with a telephone conversation.

This complaint was supported by a statement of the account

between those parties , copies of related invoices, and a

letter demanding payment. On August 12, 2003, the complaint

was amended to reflect a claim of $28,097.10, the current

amount in controversy.

A & R and Old Republic Surety Company (Old Republic), the

surety for A & R, were apprised of the amended complaint

together with a copy of the executed complaint, taken to mean

the original complaint, with documentary evidence attached. A

& R and Old Republic were also provided a copy of the

agricultural bond and license law that has been referenced.

These materials were provided by Brenda D. Hyatt, a Bureau

Chief within the Department. The notification was given on

August 19, 2003.

On August 22, 2003, Michael A. Jankowski, Senior Vice

President, Claims for Old Republic, respo nded to Ms. Hyatt

noting receipt of the claim made by Skinner and reserving

rights available to Old Republic in its defense of the action.

On September 8, 2003, A & R faxed a request to the

Department asking for an extension of time to file a response

to the amended complaint. On September 9, 2003, that request

was granted allowing A & R until September 16, 2003, to offer

its response. On September 16, 2003, A & R faxed its answer

to the amended complaint indicating that it was not certain of

the $28,09 7.10 claim by Skinner. Given this answer the

Department, through Ms. Hyatt, forwarded the case to the

Director and Chief Judge of the Division of Administrative

Hearings for the assignment of an administrative law judge to

conduct a hearing in accordance with Chapter 120.57, Florida

Statutes. The transmittal of the case was made on September

23, 2003.

On October 24, 2003, Stephen F. Dean, Administrative Law

Judge, noticed the case for hearing by video - teleconferencing

to be held November 21, 2003. The case was reassigned and the

hearing conducted by the undersigned.

Prior to hearing, correspondence was filed by Rita J.

Robinson, President of A & R, suggesting that the case had

been resolved between her company and Skinner. Alice Hunt,

Credit Manager for Skinner, filed correspondence indicating

that a resolution had not been reached between the parties.

This was followed by some indication from Ms. Hunt that Andy

Robinson, another official with A & R, informed Skinner that A

& R had withdrawn from th e dispute. No written confirmation

was filed from A & R confirming the abandonment of the defense

of the action. Consequently, when the hearing commenced,

Skinner, in the person of Chris Diaz, Controller and

representative for Skinner, elected to proceed with the case,

even in the absence of A & R and Old Republic. Skinner,

through its representative, had been given the opportunity to

proceed with the case before the undersigned or have the case

returned to the Department for disposition without hearing.

The case proceeded in the absence of a representative for

A & R and Old Republic, the undersigned being satisfied that

those parties had been duly noticed of the hearing. Notice of

the hearing had been provided the parties by ordinary mail.

The mai l was not returned.

Chris Diaz, Controller for Skinner, was recognized as a

qualified representative following inquiry at the commencement

of the hearing. Fla. Admin. Code R. 28 - 106.106.

Skinner presented Alice Hunt, Cr edit Manager, as its

witness. Petitioner's Composite Exhibit numbered 1

constituted of a statement of the account no. 3008 maintained

by Skinner in relation to A & R and various invoices

pertaining to the account was admitted as evidence.

On November 2 5, 2003, a hearing transcript was filed.

No party submitted proposed findings of fact and orders.

§ 120.57(1)(b), Fla. Stat. (2003).

FINDINGS OF FACT

1. 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).

2. 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.

3. On July 31, 2001, A & R applied f or 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.

4. 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. 300 8 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.

5. 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 F ebruary 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.

6. 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.

7. 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.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties in

accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2003).

9. Skinner, as the complainant, is charged with the duty

to prove the affirmative. Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla. 1stDCA 1977).

It must prove by a preponderance of the evidence that the

agricultural products, plants, shrubs, and trees were

delivered to A & R and not paid for. § 120.57(1)(j), Fla.

Stat. (2003)

10. This case is considered in accordance with the

provisions pertaining to dealers in agricultural products set

forth in Sec tions 604.15 through 604.34, Florida Statutes

(2002).

11. A & R is a "dealer in agricultural products" as

defined at Section 604.15(1), Florida Statutes. Skinner is a

"producer" of "agricultural products" as defined in Section

604.15(5), Florida Stat utes.

12. The nature of the "agricultural products" involved

in this case are nursery products as defined at Section

604.15(3), Florida Statutes.

13. Based upon the answer to the amended complaint, it

is assumed that A & R has been issued a license by the

Department entitling it to conduct business as a dealer in

agricultural products. Upon the facts, it is concluded that A

& R was dealing in agricultural products provided by Skinner

as producer. § 604.19, Fla. Stat. That activity was in

ac cordance with a bond provided by Old Republic. § 604.20,

Fla. Stat.

14. The period of time during which Skinner has sought

recovery for provision of the agricultural products to A & R

is within the time line contemplated by Section 604.21(10),

Florida Statutes.

15. Following the filing of Skinner's complaint with the

Department, appropriate notice was provided to A & R and Old

Republic. § 604.21(2), Fla. Stat.

16. Following the answer of A & R to the amended

complaint, the case was forwarded to t he Division of

Administrative Hearings for a hearing pursuant to Chapter 120,

Florida Statutes. This arrangement contemplated the entry of

the recommended order, to be followed by the final order of

the Department. § 604.21(6), Fla. Stat.

17. Skinne r has proven the amount of its amended

complaint, $28,097.10, due and owing from A & R for the

agricultural products that have been discussed.

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

Divis ion 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exc eptions

to this recommended order should be filed with the agency that

will issue the final order in this case.