04-000634 Skinner Nurseries, Inc. vs. Above All Lawn Care And Landscaping, Inc.; And Hartford Fire Insurance Company Status: Closed Recommended Order on Monday, December 27, 2004.

Summary: Respondent failed to appear. Petitioner showed preponderant evidence that the amount due for the sale of nursury stock and freight had never been paid and was due and owing. Recommend petition be upheld.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SKINNER NURSERIES, INC., )

)

Petitioner, )

)

vs. ) Case No. 04 - 0634

)

ABOVE ALL LAWN CARE & )

LANDSCAPING, INC.; and HARTFORD )

FIRE INSURANCE COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

In accordance with notice, this cause came on for final

hearing, before P. Michael Ruff, duly - designated Administrative

Law Judge of the Division of Administrative Hearings, on

November 1, 2004, in Ocala, Florid a. The appearances were as

follows:

APPEARANCES

For Petitioner: Chris Diaz , pro se

Skinner Nurseries, Inc.

2970 Hartley Road, Suite 302

Jacksonville, Florida 32257

For Re spondents: No appearance

STATEMENT OF 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 landsc ape 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.

PRELIMINARY STATEMENT

This is a proceeding under the Florida Agriculture Bond and

License Law, Sections 604.15 through 604.34, Florida Statutes.

This cause arose from the filing of an Amended Complaint and

copies of that complaint, which were mailed by the Florida

Department of Agriculture (Department) to the Respondent, the

Respondent's registered agent, and the co - Respondent, the

Hartford Fire Insurance Company, as surety.

The c omplainant, Skinner Nurseries, Inc., maintains that

certain trees, shrubs, and various nursery stock or materials

were purchased and delivered to the above - named Respondent and

the charges therefore were never paid. Thus, exclusive of

freight charges, it is contended by the Petitioner that

$7,129.05 are due and owing to it from the Respondent, Above

All. Upon a hearing being requested, the cause was transmitted

to the Division of Administrative Hearings and the undersigned

administrative law judge.

The ca use came on for hearing as noticed. At the hearing

the Petitioner put on its case but the Respondent failed to

appear to put on its testimony and evidence, even at this second

opportunity for hearing which has been accorded to the

Respondent. The testimo ny of Chris Diaz, representing the

Petitioner, was taken at hearing and the Petitioner's Composite

Exhibit 1, consisting of invoices concerning the goods and

shipments in question, were offered by the Petitioner and

admitted into evidence. On conclusion o f the hearing, the

parties were given an opportunity to submit proposed recommended

orders but have declined to do so. Accordingly this Recommended

Order is entered based upon the administrative law judge's

hearing of the testimony, reading of the exhibit s, observing the

candor and demeanor of the witness, and the review of the

undersigned's notes.

FINDINGS OF FACT

1. The Petitioner, Skinner Nurseries, Inc. (Skinner), is a

corporation whose address is 2970 Hartley Road, Suite 302,

Jacksonville, Florida.

2. 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 am ount 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 agric ultural products purchased by the

Respondent, Above All.

3. 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.

4. 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

t he amounts Skinner was claiming.

5. 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 s tatements 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 charge s. The

goods and materials in question were shipped from the Bunnell

nursery site of Skinner to the Respondent's location in Ocala,

Florida.

6. 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.

CONCLUSIONS OF LAW

7. The Division of Administra tive Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

8. Section 604.20(1), Florida Statutes, provides:

Before any (agriculture commodity dealers)

license is issued, the applicant therefore

shall make and deliver to the department a

surety bond or certificate of deposit in the

amount of at least $3,000.00, or in such

greater amount as the department may

determine, . . . such bond must be executed

by surety corporation aut horized to transact

business in the state . . . . Such bond or

any certificate of deposit assignment or

agreement shall be upon a form prescribed or

approved by the department and shall be

conditioned to secure the faithful

accounting for and payment to p roducers, or

their agents or representatives of the

proceeds of all agricultural products

handled or purchased by such dealer.

9. Section 604.21(1), Florida Statutes, provides:

Any person claiming herself or himself to be

damaged by any breach of the conditions of a

bond or certificate of deposit assignment or

agreement given by a licensed dealer in

agricultural products as hereinbefore

provided may enter complaint thereof against

the dealer and against the surety, if any,

to the department, which comp laint shall be

a written statement of the facts

constituting the complaint. Such complaint

shall be filed within six months from the

date of sale in instances involving direct

sales or from the date on which the

agricultural product was received by the

de aler in agricultural products, as agent,

to be sold for the producer.

10. The Respondent failed to appear and produce any

evidence in opposition to the complaint and to the testimony and

evidence adduced from the Petitioner. Thus, the evidence was

undis puted that the Petitioner is owed the sum of $7,129.05 by

the Respondent, which remains unpaid. Therefore it must be

concluded that the Respondent is indebted to Skinner Nurseries,

Inc., in the amount of $7,129.05. This indebtedness is in

violation of th e conditions and provisions of the surety bond

that the Respondent has on file with the Department, as provided

for in Section 604.20(1), Florida Statutes.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence o f 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

Nurs eries, 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 order ed 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

Divisio n 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 2 7th 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 Ditschler, 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 Build ing

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 Insu rance Company

Hartford Plaza, T - 4

Hartford, Connecticut 06115

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 exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.