05-003372 Skinner Nurseries, Inc. vs. Akers Holdings, Llc And Fidelity And Deposit Company Of Maryland, As Surety Status: Closed Recommended Order on Tuesday, July 7, 2009.

Summary: Respondent or its surety must pay $112,390.39 to Petitioner for unpaid invoices related to agricultural products delivered to various job sites.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SKINNER NURSERIES, INC., )

)

Petitioner, )

)

vs. ) Case No. 05 - 3372

)

AKERS HOLDINGS, LLC AND )

FIDELITY AND DEPOSIT COMPANY OF )

MARYLAND, AS SURETY, )

)

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 November 14, 2005, in Jacksonville,

Florida.

APPEARANCES

For Petitioner Ski nner Nurseries, Inc. :

Donald M. DuMond , pro se

Skinner Nurseries, Inc.

2970 Hartley Road, Suite 302

Jacksonville, Florida 32257

For Respondent Akers Holdings, LLC :

R. Dean Akers, pro se

(No Appearance)

For Respondent Fidelity and Deposit Company of

Maryland, as Surety:

Kathy Alves, pro se

(No Appearance)

STATEMENT OF THE ISSUE

The issue is whether Respondent, Akers Holdings, LLC, and

its surety, Fidelity and Deposit Company of Maryland, are liable

for funds due to Petitioner from the sale of agricultural

products.

PRELIMINARY STATEMENT

On or about March 23, 2005, Petitioner filed an Agent

Complaint with the Florida Department of Agriculture and

Consumer Services (the "Department"). The Complaint all eged

that Respondent or its surety owed funds to Petitioner for

nursery products in the amount of $ 136,942.49 purchased by

Respondent under the provisions of the Agricultural Bond and

License Law, Sections 604.15 through 604.34, Florida Statutes.

Thereaft er, on or about May 18, 2005, Respondent, Akers

Holdings, LLC, filed a response to the Complaint in which it

alleged that all accounts with Petitioner are paid as agreed and

that none of the alleged open accounts were, in fact, open .

Respondent, therefore , claimed that it owed Petitioner nothing.

The matter was referred to the Division of Administrative

Hearings on October 18 , 2005. A Notice of Hearing issued

scheduling the matter for November 14 , 2005. The hearing

commenced and was completed that morni ng in Jacksonville,

Florida, with the testimony of Petitioner's witnesses only since

neither Respondent, Akers Holdings, LLC, or Respondent, Fidelity

and Deposit Company of Maryland, appeared by counsel or pro se .

At the hearing, Petitioner presented the t estimony of

Chris Diaz, Petitioner's Controller, and Alice Hunt,

Petitioner's Credit Manager, and offered Exhibit Nos. 1 through

3 , all of which were admitted, into evidence. Respondent s

presented no evidence or witnesses and did not contact the

division to attempt to excuse their appearance at the hearing.

No transcript was filed. Neither Petitioner nor Respondent s

submitted proposed findings of fact and conclusions of law.

References to statutes 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, plants,

and other landscaping supplies at a location in Bunnell,

Florida.

2. Respondent is a dealer in agricultural products as

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

the transactions in question, Respondent was a landscape

distribution company and a licensed dealer in agricultural

products supported by a surety bond provided by Fidelity and

Deposit Company of Maryland .

3. This matter arose over an Agent Complaint filed by

Petitioner on March 23 , 2005, in which it alleged that

Respondent owed $ 136,942.49 , based upon numerous invoices for

nursery goods delivered to various job sites where Respondent

was providing landscaping services.

4. Respondent Akers Holdings, LLC, by its agent or

employee, R. Dean Akers, signed a Promissory Note on March 23,

2005, in the amount of $137,445.47 plu s ten percent simple

interest per annum . Under the note, Respondent agreed to repay

its outstanding debt to Petitioner at the rate of $12,083.64 per

month, commencing March 15, 2005, until paid in full.

5. Respondent made payments under the note as fo llows:

Date of Payment Amount Paid Check N o.

3/15/2005 $12,083.64 13536

4/15/2005 12,097.81 1360

5/13/2005 12,090.51 13657

6/14/2005 12,129.37 1372

7/29/2005 12,103.41 13782

6. The payment dated 7/29/2005 was received by Petiti oner

on August 8, 2005. No subsequent payments were made by

Respondent, Akers Holdings, LLC, after that date.

7. At the time of hearing, based upon the evidence

presented by Petitioner, the amount due to Petitioner under the

Promissory Note was $81,655. 81, and the amount due to Petitioner

on open account was $30,734.58.

8. Respondent, Akers Holdings, LLC, offered no excuse for

its nonpayment of either the Promissory Note or the open account

with Petitioner.

9. Accordingly, Respondent Akers Holdings, LLC, or its

surety, Fidelity and Deposit Company of Maryland, owe Petitioner

$81,655.81 on the Promissory Note and $30,734.58 on open

account, for a total amount owed of $112,390.39.

CONCLUSIONS OF LAW

10 . The Division of Administrative Hearings has

juri sdiction over the subject matter of and the parties to this

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

11 . Section 604.15, Florida Statutes, contains the

following definitions , in pertinent part:

(1) 'Agricultural products' means th e

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

domicile d 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 representative 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

agric ultural products produced in the state.

1 2 . Section 604.17, Florida Statutes, requires dealers in

agricultural products to have a license to engage in such

business.

1 3 . Before dealers receive their licenses, they must

deliver to the Department a su rety 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 . Stat.

1 4 . Petitioner has met its burden of proving, by a

preponderance of the e vidence, that Respondents are indebted to

Petitioner for unpaid invoices in the amount of $ 112,390.39, as

evidenced by the amount outstanding on the Promissory Note

executed by Respondent, Akers Holdings, LLC, and the open

account with Petitioner.

RECOMMEN DATION

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, or

its surety, to pay Petitioner $ 112,390.39 for unpaid invoices.

DONE AND ENTERED this 2 6 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

(850) 48 8 - 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 6 th day of January , 200 6 .

COPIES FURNISHED :

Kathy Alves

Fidelity & Deposit

Company of Maryland

Post Office Box 87

Baltimore, Maryland 21203

R. Dean Akers

Akers Holdings, LLC

5006 20th Avenue, South

Tampa, Florida 33619

Donald M. DuMond

Skinner Nurseries, Inc.

2970 Hartley Road, Suite 302

Jacksonville, Florida 32257

Christopher E. Green, Chief

Bureau of Li cense and Bond

Department of Agriculture and

Consumer Services

Division of Marketing

407 South Calhoun Street, Mail Station 38

Tallahassee, Florida 32399 - 0800

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 Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

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.