07-000373 American Farms, Llc vs. Smallwood Design Group/Smallwood Landscape, Inc., And Hartford Fire Insurance Company, As Surety Status: Closed Recommended Order on Friday, August 3, 2007.

Summary: Respondent owes payment for plants purchased from Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMERICAN FARMS, LLC , )

)

Petitioner , )

)

vs. ) Case No. 07 - 0373

)

SMALLWOOD DESIGN )

GROUP/SMALLWOOD LANDSCAPE, )

INC., AND HARTFORD FIRE )

INSURANCE COMPANY, AS SURETY , )

)

Respondent s . )

)

RECOMMENDED ORDER

On June 22, 2007, a formal administrative hearing in this

case was held by video tele conference in Tallahassee and Tampa,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Divis ion of Administrative Hearings.

APPEARANCES

For Petitioner: H. Richard Bisbee, Esquire

H. Richard Bisbee, P.A.

1882 Capital Circle Northeast, Suite 206

Tallahassee, Florida 32309

For Responde nt: (No appearance)

STATEMENT OF THE ISSUE

The issue is whether Smallwood Design Group/Smallwood

Landscape, Inc. (Respondent) , and its surety, Hartford Fire

Insurance Company , owe funds to American Farms, LLC,

(Petitioner) for th e sale of agricultural pr oducts .

PRELIMINARY STATEMENT

On or about November 29, 2006, the Petitioner filed a

complaint with the Florida Department of Agriculture and

Consumer Services (DACS) against the Respondent related to the

Respondent's alleged non - payment for plant materials purchased

from the Petitioner. The Respondent replied to the complaint

asserting that "Smallwood Design Group/Smallwood Landscape Inc."

had been sold and had not been in business since June 13, 2006.

The dispute was forwarded by the DACS to the Division of

Administrative Hearings, which scheduled the matter for hearing.

The scheduled hearing was once continued and w as conducted on

June 22, 2007.

At the hearing, the Petitioner presented the live testimony

of one witness and had E xhibits 1 through 4 admit ted into

evidence . The Respondent presented no testimony or exhibits.

No transcript of the hearing was filed. The Petitioner

filed a Proposed Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Petitioner was

a licensed agricu ltural pro ducer in the State of Florida.

2. At all times material to this case, the Respondent was

a licensed agricultural dealer in the State of Florida.

3. From May 30 through October 27, 2006, the Respondent

purchased agricultural products, specifica lly foliage plants,

from the Petitioner.

4. All charges for the plants sold by the Petitioner to

the Respondent were billed on invoices that were sent to the

Respondent by the Petitioner. The quantities and prices of the

delivered plants were clearly ide ntified on the invoices.

5. The Respondent has failed to pay invoices totaling

$11,777.18 that were sent by the Petitioner to the Respondent.

6. There is no evidence that any of the charges were

disputed by the Respondent at the time the sales were invoi ced.

7. There is no evidence that any of the plants sold by the

Petitioner to the Respondent were unsatisfactory in terms of

price or quality.

8. As required by law, the Respondent had in place an

Agricultural Products Dealer Bond dated December 9, 2005. The

bond was executed by Joann Smallwood as "principal" for the

Respondent. The bond was effective for one year and included

the time period relevant to this proceeding.

9. In correspondence filed during the course of this

proceeding, the Respondent as serted that Joann Smallwood sold

the business to another owner during the time relevant to this

proceeding.

10. The evidence established that at all times material to

this case, Joann Smallwood acted as the owner/manager of the

business. The plants sold by the Petitioner to the Respondent

were picked up by trucks with Smallwood logos and signage.

11. There was no evidence that the Petitioner was ever

advised during the time the Respondent was purchasing plants

from the Petitioner that Joann Smallwood ha d sold the business

or that the Respondent would not be liable for payment of

products purchased from the Petitioner.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding . §§ 120.569 and 120.57(1), Fla. Stat. (2006) . 1

13. Section 604.15, Florida Statutes, sets forth relevant

definitions as follows:

(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 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 bas is; or acting as a

negotiating broker between the producer or

the producer's agent or representative and

the buyer.

* * *

( 9 ) " Producer " means any producer of

agricultural products produced in the state.

14. As the terms are statutorily define d, the Petitioner

is a "producer" of agricultural products , and the Respondent is

a "dealer" of agricultural products.

15. Florida - based dealers in agricultural products are

required to obtain a license issued by the DACS. § 604.17, Fla .

Stat . One of th e requirements for licensure is deliver y to the

D ACS of a surety bond or a certificate of deposit intended to

secure payment for agricultural products sold to dealers by

producers. § 604.20(1), Fla . Stat .

16. In material part, Section 604.21, Florida Sta tutes ,

provides as follows:

604.21 Complaint; investigation; hearing. --

(1)(a) Any person, partnership,

corporation, or other business entity

claiming to be damaged by any breach of the

conditions of a bond or certificate of

deposit assignment or agreem ent given by a

dealer in agricultural products as

hereinbefore provided may enter complaint

thereof against the dealer and against the

surety company, if any, to the department,

which complaint shall be a written statement

of the facts constituting the com plaint.

Such complaint shall include all

agricultural products defined in s.

604.15(1), as well as any additional charges

necessary to effectuate the sale unless

these additional charges are already

included in the total delivered price. . . .

* * *

(g) The surety company or financial

institution shall be responsible for payment

of properly established complaints filed

against a dealer, notwithstanding the

dealer's filing of a bankruptcy proceeding.

* * *

(2) Upon the filing of such c omplaint in

the manner herein provided, the department

shall investigate the matters complained of;

whereupon, if, in the opinion of the

department, the facts contained in the

complaint warrant such action, the

department shall serve notice of the filing

o f complaint to the dealer against whom the

complaint has been filed at the last address

of record. Such notice shall be accompanied

by a true copy of the complaint. A copy of

such notice and complaint shall also be

served to the surety company, if any, t hat

provided the bond for the dealer, which

surety company shall become party to the

action. Such notice of the complaint shall

inform the dealer of a reasonable time

within which to answer the complaint by

advising the department in writing that the

alle gations in the complaint are admitted or

denied or that the complaint has been

satisfied. Such notice shall also inform

the dealer and the surety company or

financial institution of a right to a

hearing on the complaint, if requested.

* * *

(6) Any party whose substantial interest is

affected by a proceeding pursuant to this

section shall be granted a hearing upon

request as provided by chapter 120. Such

hearing shall be conducted pursuant to

chapter 120. The final order of the

department, wh en issued pursuant to the

recommended order of an administrative law

judge, shall be final and effective on the

date filed with the department's agency

clerk. Any party to these proceedings

adversely affected by the final order is

entitled to seek review of the final order

pursuant to s. 120.68 and the Florida Rules

of Appellate Procedure. Should a complaint

forwarded by the department to the Division

of Administrative Hearings be settled prior

to a hearing pursuant to chapter 120, the

department shall is sue a notice closing the

complaint file upon receipt of the

administrative law judge's order closing the

complaint file, and the matter before the

department shall be closed accordingly.

(7) Any indebtedness set forth in a

departmental order against a d ealer shall be

paid by the dealer within 15 days after such

order becomes final.

(8) Upon the failure by a dealer to comply

with an order of the department directing

payment, the department shall, in instances

involving bonds, call upon the surety

compa ny to pay over to the department out of

the bond posted by the surety company for

such dealer or, in instances involving

certificates of deposit, call upon the

financial institution issuing such

certificate to pay over to the department

out of the certific ate under the conditions

of the assignment or agreement, the amount

called for in the order of the department,

not exceeding the amount of the bond or the

principal of the certificate of

deposit . . .

* * *

(11) Upon the failure of a surety co mpany

to comply with a demand for payment of the

proceeds on a bond for a dealer in

agricultural products, a complainant who is

entitled to such proceeds, in total or in

part, may, within a reasonable time, file in

the circuit court a petition or complaint

setting forth the administrative proceeding

before the department and ask for final

order of the court directing the surety

company to pay the bond proceeds to the

department for distribution to the

complainants. If in such suit the

complainant is succes sful and the court

affirms the demand of the department for

payment, the complainant shall be awarded

all court costs incurred therein and also a

reasonable attorney's fee to be fixed and

collected as part of the costs of the suit.

In lieu of such suit, th e department may

enforce its final agency action in th e

manner provided in s. 120.69.

17. The Petitioner has the burden of establishing by a

preponderance of the evidence entitlement to the relief sought.

Balino v. Department of Health and Rehabilitativ e Services , 348

So. 2d 349 (1st DCA 1977). In this case, the preponderance of

the evidence establishes that the Respondent owes a total of

$11,777.18 to the Petitioner for the agricultural products

identified herein.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Agriculture and

Consumer Services enter a f inal o rder directing that the

Respondent pay the total of $11,777.18 to the Petitioner (plus

the filing fee paid by the Petitioner to the DACS) and

establishing such other procedures as are necessary to provide

for satisfaction of the debt.

DONE AND ENTERED this 3rd day of August , 2007 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

A dministrative 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 the Clerk of the

Division of Administrative Hearings

this 3rd day of August , 2007 .

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes

(2006), unless otherwise indicated.

COPIES FURNISHED :

Christopher E. Green , Chief

Bureau of License and Bond

Division of Mar keting

Department of Agriculture and

Consumer Services

407 South Calhoun Street, MS 38

Tallahassee, Florida 32399 - 0800

Edward K. Cheffy, Esquire

Cheffy Passidomo Wilson & Johnson

821 Fifth Avenue South, Suite 201

Naples, Florida 34102

H. Richard Bisb ee, Esquire

H. Richard Bisbee, P.A.

1882 Capital Circle Northeast, Suite 206

Tallahassee, Florida 32309

Quinn A. Henderson, Esquire

Mills Paskert Divers P.A.

100 North Tampa Street , Suite 2010

Tampa, Florida 33602

Richard Ditschler, General Counsel

Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

Honorable Charles H. Bronson

Commissioner of Agriculture

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 agen cy that

will issue the Final Order in this case.