04-003191 C. M. Payne And Son, Inc. vs. Garrison Irrigation, Inc., And Continental Casualty Company, As Surety Status: Closed Recommended Order on Wednesday, December 22, 2004.

Summary: Respondent failed to pay invoices to Petitioner for Bahia sod. Recommend Respondent pay Petitioner $2,996.00.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

C. M. PAYNE AND SON, INC., )

)

Petitioner, )

)

vs. ) C ase No. 04 - 3191

)

GARRISON IRRIGATION, INC., AND )

CONTINENTAL CASUALTY COMPANY, )

AS SURETY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice and in accordance with Section 120.569

and Subsection 120.57(1), Florida Statutes (2004), this cause

came on for final hearing before Fred L. Buckine, the designated

Administrative Law Judge of th e Division of Administrative

Hearings, on October 27, 2004, in Sebring, Florida.

APPEARANCES

For Petitioner: Jennifer Payne, pro se

C. M. Payne & Son, Inc.

9404 Payne Road

Sebring, Florida 33875

For Respondent Garrison Irrigation, Inc.:

No Appearance

For Respondent Continental Casualty Company:

No Appearance

STATEMENT OF THE ISSUES

Whether Respondent, Garrison Irrigation, Inc., failed to

pa y 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.

PRELIMINARY STATEMENT

On July 20, 2004, Petitioner, C .M. Payne and Son, Inc.,

filed a complaint with the Department of Agriculture and

Consumer Services (Department), alleging that Respondent,

Garrison Irrigation, Inc., failed and refused to pay four

invoices, totaling $1,540.80, 1 for four pallets of Bahia s od,

after repeated calls and attempts were made to collect those

four outstanding invoices.

On August 12, 2004, the Department noticed the Commissioner

of Agriculture under the provisions of the Agriculture Bond and

License Law, Sections 604.15 through 604 .34, Florida Statutes

(2004), of Petitioner's complaint.

On August 24, 2004, Respondent, Joe Garrison,

president/owner of Garrison Irrigation, Inc., filed a response

to the compliant filed by Petitioner.

On September 9, 2004, the complaint was referred by the

Department to the Division of Administrative Hearings where it

was assigned to the undersigned Administrative Law Judge and set

for hearing. On that same date, the Initial Order was entered

and forwarded to all parties of interest.

On September 21, 20 04, Respondent, Continental Casualty

Company, filed a letter declining to file an answer or move in

any other manner on this matter at this time.

On September 23, 2004, a Notice of Hearing, scheduling the

final hearing for October 27, 2004, in Sebring, Flo rida, and an

Order of Pre - hearing Instructions were entered.

At the formal hearing on October 27, 2004, no one appeared

on behalf of Respondents, Garrison Irrigation, Inc., and

Continental Casualty Company.

The undersigned called his secretary who telephon ed

Respondent, Joseph L. Garrison, and was informed that he had

forgotten the hearing and the date, was out - of - pocket, and would

not be attending. Jennifer Payne, wife of John Payne, president

of C.M. Payne and Son, Inc., appeared on his behalf and gave

t estimony.

The hearing was recorded and transcribed. Petitioner was

advised of the option and the time frame in which to file a

proposed recommended order and declined to do so. The

Transcript of the hearing was filed on November 5, 2004.

Neither party filed a proposed recommended order.

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:

1. 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).

2. At all times material to this pro ceeding, 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. 9292377 54 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.

3. At all times material, Continental i s the surety which

issued Garrison a surety bond.

4. 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.

5. 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.

6. 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.

7. 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.

8. The terms of the sale between Petitioner and Garrison

were for net payment for products sold within 30 days after the

invoice date.

9. Garrison did not appear at the hearing to contest or

otherwise refute the charges alleged in Petitioner's complaint.

10. 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.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

action pursuant to Subsection 120.57(1), Florida Statutes

(2004).

12. The authority of the Department is derived from

Chapter 604, Florida Statutes (2004).

13. Petitioner is an agricultural producer within the

meaning o f Subsection 604.15(5), Florida Statutes (2004).

14. Garrison is an agricultural dealer as that term is

defined in Subsection 604.15(1), Florida Statutes (2004).

15. During all times material, Continental issued a bond

to Garrison for agricultural produc ts pursuant to

Section 604.20, Florida Statutes (2004).

16. Garrison is indebted to Petitioner in 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.

RECOMMENDATION

Based on the fo regoing 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 Ba hia 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, Continenta l

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 th e Clerk of the

Division of Administrative Hearings

this 22nd day of December, 2004.

ENDNOTE

1/ The Commissioner's Notice of Filing of a Complaint, in the

paragraph titled "Amount of Complaint," lists the sum of

$1,540.80. This amount was apparently ta ken directly from the

form titled "Producer Compliant." However, the total of the

four copies of invoices (20027, 20033, 20039, and 20044) in

evidence is $2,996.00, the amount found to be owed Petitioner by

Respondent.

COPIES FURNISHED :

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

Jennifer Payne

C. M. Payne & Son, Inc.

9404 Payne Road

Sebring, Florida 33875

Joseph L . Garrison

Garrison Irrigation, Inc.

Post Office Box 510

Dundee, Florida 33838

Rob L. Meadows, Esquire

CNA Surety

101 South Phillips Avenue

Post Office Box 5077

Sioux Falls, South Dakota 57117 - 5077

Richard Ditschler, General Counsel

Department of A griculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Honorable Charles H. Bronson

Commissioner of Agriculture

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

Al l 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.