05-003083 Skinners Wholesale Nursery, Inc. vs. Greenblades Of Central Florida, Inc. And Western Surety Company Status: Closed Recommended Order on Wednesday, January 25, 2006.

Summary: Respondent or its surety owes Petitioner $6,549.47 for unpaid invoices for agricultural products delivered to its various job sites.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SKINNERS WHOLESALE NURSERY, )

INC., )

)

Petitioner, )

)

vs. ) Case No. 05 - 3083

)

GREENBLADES OF CENTRAL FLORIDA, )

INC. AND WESTERN SURETY )

COMPANY, )

)

Respondent s . )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearing s , on October 24, 2005, and on

November 14, 2005, in Jacksonville, Florida.

APPEAR ANCES

For Petitioner Skinners Wholesale Nursery, Inc.:

Tom Robinson , pro se

Skinner Nurseries, Inc.

13000 State Road 11

Bunnell , Florida 32 110

For Respondent Greenblades of Central Florida, Inc.:

Joseph Robbins, Jr. , pro se

Gr eenblades of Central Florida, Inc.

11025 Southeast Highway 42

Summerfield, Florida 34491

For Respondent Western Surety Company:

No appearance.

STATEMENT OF THE ISSUE

The issue is whether Respondent , Greenblades of Central

Florida, Inc., and its surety, Western Surety Company, are

liable for funds due to Petitioner from the sale of agricultural

products.

PRELIMINARY STATEMENT

On or about June 24, 2005, Petitioner filed a Producer

C omplaint with the Florida Department of Agricultur e and

Consumer Services (the "Department"). The C omplaint alleged

that Respondent or its surety owed funds to Petitioner for

nursery products in the amount of $20,512.97 purchased by

Respondent under the provisions of the Agricultural Bond and

License Law , Sections 604.15 through 604.34, Florida Statutes.

Thereafter, on or about July 20, 2005, Petitioner filed an

A mended C omplaint with the Department reducing the amount owed

to $8,689.47. On or about August 15, 2005, R espondent filed a

response to the Am ended Compla int.

The matter was referred to the Division of Administrative

Hearings on August 24, 2005. A Notice of Hearing issued

scheduling the matter for October 24, 2005. The hearing

commenced that morning in Jacksonville, Florida, with the

testimon y of Petitioner's witnesses since neither Respondent nor

a representative of its surety appeared. During the hearing,

Respondent sent by facsimile to Judge Cohen's office, a request

for a c ontinuance based upon hurricane - related emergency duties

Responden t was obligated to perform. After a telephonic hearing

on Respondent's m otion, the hearing was re - scheduled for

November 14, 2005, to allow Respondent to present its case and

for any rebuttal from Petitioner. Petitioner chose not to

appear on November 14 , 2005, and the hearing commenced and was

completed that day.

At the hearing, Petitioner presented the testimony of

Thomas W. Robinson and Sandra Salyers and offered E xhibit s

numbered 1 through 7, all of which were admitted, into evidence.

Respondent pres ented the testimony of Joe Robbins and

Bill Spriet and offered E xhibit n umbered 1 , which was admitted

into evidence.

No t ranscript was filed . Neither Petitioner nor Respondent

submitted proposed findings of fact and conclusions of law.

References to s tatutes are to Florida Statutes (2004)

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner is a producer of agricultural products as

defined by Section 604.15(5), Florida Statutes. Petitioner

operates a nursery supply company that produces trees, p lants,

and other landscaping supplies at a location in Bunnell,

Florida.

2. Respondent is a dealer in agricultural products as

defined by S ection 604.15(1), Florida Statutes. At the time of

the transactions in question, Respondent was a licensed deale r

in agricultural products supported by a surety bond provided by

Western Surety Company.

3. This matter arose over a Producer Complaint filed by

Petitioner on June 24, 2005, in which it alleged that Respondent

owed $20,512.97, based upon five invoices for nursery goods

delivered to various job sites where Respondent was providing

landscaping services. The five invoices set forth in the

original Producer Complaint are as follows:

Date of Sale Invoice # Amount

Dec. 28, 2004 64679 $2,884.72

J an. 11, 2005 64828 3,878.75

Jan. 11, 2005 64829 1,926.00

Feb. 1, 2005 65229 2,086.50

Feb. 3, 2005 65127 9,737.00

4. Petitioner later amended its Complaint to withdraw its

claims under Invoice Nos. 65229 and 65127, as untimely filed,

resu lting in an amended amount due of $8,689.47.

5. Respondent filed a Response to the Producer Complaint

on August 15, 2005, admitting the amounts due under Invoice Nos.

64679 and 64828, totaling $6,763.47, and denying the amount

claimed in Invoice No. 6482 9, $1,926.00, as never having been

filled, resulting in Respondent 's using another vendor to fill

the order.

6. Respondent admitted the amounts due under Invoice Nos.

64679 and 64828 ; therefore , no further discussion is necessary

for those items , except to note that Delivery Receipt No. 17751,

relating to Invoice No. 64828 contains the note "Reject 1 Live

Oak." Therefore, the amount of Invoice No. 64828 must be reduced

by $214.00 ($200 for the tree and 7 percent Florida Sales Tax).

7. With respect to In voice No. 64829, however, Petitioner

produced at hearing only an unsigned invoice without either a

sales order or a receipt for delivery of goods, as was its

custom concerning deliveries of nursery goods. Accordingly,

Petitioner provided no proof that the order under Invoice No.

64829 was actually delivered to Respondent.

8. Respondent and its surety, Western Surety Company,

currently owe Petitioner $2,884.72 under Invoice No. 64679, and

$3,664.75 under Invoice No. 64828, for a total amount owed of

$6,54 9.47.

CONCLUSIONS OF LAW

9 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § § 120.569, 120.57(1), and 604.21(6), Fla. Stat.

10. Section 604.15, Florida Statutes, contains the

following definitions in pertinent part:

(1) ' Agricultural products ' means the

natural products of the farm, nursery,

grove, orchard, vineyard, garden, and apiary

(raw or manufactured); . . . .

( 2 ) ' Dealer in agricultural products ' means

any person, partnership, corporation, or

other business entity, whether itinerant or

domiciled within this state, engaged within

this state in the business of purchasing,

receiving, or soliciting agricultural

products from the producer or the producer's

agent or repre sentative for resale or

processing for sale; acting as an agent for

such producer in the sale of agricultural

products for the account of the producer on

a net return basis; or acting as a

negotiating broker between the producer or

the producer's agent or representative and

the buyer.

* * *

(5) ' Producer ' means any producer of

agricultural products produced in the state.

11. Section 604.17, Florida Statutes, requires dealers in

agricultural products to have a license to engage in such

business.

12. Before dealers receive their licenses, they must

deliver to the Department a surety bond or a certificate of

deposit. The surety bond or certificate of deposit secures

payment to producers for agricultural products sold to dealers.

§ 604.20(1), Fla . St at.

13. Petitioner has met its burden of proving, by a

preponderance of the evidence, that Respondents are indebted to

Petitioner for unpaid invoices in the amount of $6,549.47.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that the Florida Department of Agriculture and

Consumer Services enter a Final Order requiring Respondent,

Greenblades of Central Florida, Inc., or its surety, Respondent,

Western Surety Company, to pay Petitioner $6,549.47 for unpaid

inv oices .

DONE AND ENTERED this 2 5 th day of January , 200 6 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(8 50) 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 5 th day of January , 200 6 .

COPIES FURNISHED :

Chris topher E. Green , Chief

Bureau of License and Bond

De partment of Agriculture and

Consumer Services

Division of Marketing

407 South Calhoun Street, Mail Station 38

Tallahassee, Florida 32399 - 0800

Joseph Robbins, Jr.

Greenblades of Central Florida, Inc.

11025 Southeast Highway 42

Summerfield, Florida 34 491

Tom Snyder

Western Surety Company

Post Office Box 5077

Sioux Falls, South Dakota 57117 - 5077

Donald M. DuMond

Skinner Nurseries, Inc.

2970 Hartley Road, Suite 302

Jacksonville, Florida 32257

Tom Robinson

Skinner Nurseries, Inc.

13000 State Road 11

Bunnell , Florida 32 110

Honorable Charles H. Bronson

Department of Agriculture and

Consumer Services

Commissioner of Agriculture

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Richard Ditschler, General Counsel

Department of Agricult ure and

Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

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. A ny exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.