08-005585 Horizon Nursery Of Florida, Lc vs. Designing Women Landscaping, Inc., D/B/A Designing Women Landscaping And Nursery, And Nova Casualty Company, As Surety Status: Closed Recommended Order on Thursday, February 5, 2009.

Summary: Petitioner established that Respondent had a debt, due to service charges for untimely payments for agricultural products per a written agreement for credit, and was obligated to pay the debt.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HORIZON NURSERY OF FLORIDA, LC, )

)

Petitioner, )

)

vs. ) Case No. 08-5585

)

DESIGNING WOMEN LANDSCAPING, )

INC., d/b/a DESIGNING WOMEN )

LANDSCAPING AND NURSERY, AND )

NOVA CASUALTY COMPANY, AS )

SURETY, )

)

Respondents. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on January 6, 2009, by telephone in Tallahassee, Florida, before

Errol H. Powell, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Christopher D. Smith, pro se

114 43rd Avenue, Southwest

Vero Beach, Florida 32968

For Respondent: Joseph Shay, pro se

6275 West State Road 46

Sanford, Florida 32771

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent is

indebted to Petitioner in the amount of $2,295.00 for

agriculture products, plus $50.00 filing fee, totaling

$2,345.00.

PRELIMINARY STATEMENT

Horizon Nursery of Florida, LC, hereinafter Horizon

Nursery, filed an Amended Claim before the Florida Department of

Agriculture and Consumer Services, hereinafter Department,

against Designing Women Landscaping, Inc., d/b/a Designing Women

Landscaping and Nursery, hereinafter Designing Women

Landscaping, for indebtedness due to the failure of Designing

Women Landscaping to pay Horizon Nursery for agriculture

products sold to Designing Women Landscaping. Designing Women

Landscaping filed a response denying and challenging the Amended

Claim and requesting a hearing. On November 6, 2008, the

Department referred this matter to the Division of

Administrative Hearings.

At hearing, Horizon Nursery presented the testimony of one

witness and entered six exhibits (Petitioner's Exhibits numbered

1 through 6) into evidence. Designing Women Landscaping

presented the testimony of one witness and entered four exhibits

(Respondent's Exhibits numbered 1 through 4) into evidence.

No transcript of the final hearing was ordered. At the

request of the parties, the time for filing post-hearing

submissions was set for ten days following the conclusion of the

hearing. The parties timely filed their post-hearing

submissions, which were considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. No dispute exists that, at all times material hereto,

Horizon Nursery was a producer of agriculture products.

2. No dispute exists that, at all times material hereto,

Designing Women Landscaping was a dealer in agriculture

products.

3. No dispute exists that, at all times material hereto,

Designing Women Landscaping purchased agriculture products from

Horizon Nursery.

4. Linda Esposito testified on behalf of Horizon Nursery.

She is the Office Manager of Horizon Nursery.

5. Beth Best testified on behalf of Designing Women

Landscaping. She is the Vice President of Operations for

Designing Women Landscaping.

6. No dispute exists that Horizon Nursery and Designing

Women Landscaping began their business relationship in February

2005.

7. Horizon Nursery has a form titled “Terms and Conditions

of Credit” for dealers in agricultural products who desire to do

business with it on credit. Horizon Nursery also refers to the

form as a credit application. The Terms and Conditions of

Credit contains a section at the end of the form for the date,

the name of the firm, the signature and title of the person

executing the form on behalf of the firm, the printing of that

person’s name, and the social security number of that person.

The Terms and Conditions of Credit provisions provide in

pertinent part:

Charges are due 30 days from invoice date.

All past due accounts are subject to a

service charge of 1.5% per month.

* * *

The undersigned applicant does hereby

certify that the information given is

correct . . . it is agreed and understood by

HORIZON NURSERY . . . and the undersigned

that all purchases made on an open account

will be paid in full according to the terms

of sale on each invoice and this

application.

8. Horizon Nursery possessed a Terms and Conditions of

Credit form dated February 8, 2005, with the firm name of

Designing Women Landscape. Further, the Terms and Conditions of

Credit form contained the signature of the owner of the firm,

however, the name of the owner was not printed. The social

security number was redacted. Designing Women Landscaping

admitted that the signature appears to be that of its President,

Susan Hallett. 1 An inference is drawn and a finding of fact is

made that the signature is that of the President of Designing

Women Landscaping.

9. Designing Women Landscaping did not possess a copy of

the Terms and Conditions of Credit.

10. A finding of fact is made that Designing Women

Landscaping executed, agreed to, and was subject to the Terms

and Conditions of Credit.

11. Regarding payments on an account, Horizon Nursery’s

standard operating procedure is to apply a payment first to

service charges on the account and then to the oldest

outstanding invoice of the account.

12. Designing Women Landscaping received specific invoices

from Horizon Nursery, regarding agricultural products ordered by

and shipped to it, and paid the specific invoices for

agricultural products from Horizon Nursery. However, several

payments by Designing Women Landscaping were made beyond 30 days

of the date of the invoices. When a payment was not made within

30 days of an invoice date, Horizon Nursery added a service

charge to the balance owed in accordance with the Terms and

Conditions of Credit; and, in accordance with its standard

operating procedure, applied the payment first to the service

fee owed and then to the oldest outstanding invoice.

13. However, when Horizon Nursery sent a subsequent

invoice to Designing Women Landscaping for agricultural products

that were ordered by and shipped to Designing Women Landscaping,

the invoice reflected, among other things, the cost for

agricultural products ordered by and shipped to Designing Women

Landscaping, but did not reflect the service charge that had

been added to the Designing Women Landscaping’s account for the

late payment. Moreover, none of the invoices for agricultural

products ordered by and shipped to Designing Women Landscaping

reflected service charges that had been added to the Designing

Women Landscaping’s account for late payments.

14. Horizon Nursery’s AR Dated Invoice/Payment Report

reflects a beginning balance of $-0- for Designing Women

Landscaping as of April 3, 2006. Subsequent to April 3, 2006,

according to the AR Dated Invoice/Payment Report, Designing

Women Landscaping began to accrue service charges.

15. Throughout the business relationship between Horizon

Nursery and Designing Women Landscaping, no dispute exists that

Designing Women Landscaping received specific invoices totaling

$168,622.96 for agricultural products ordered by and shipped to

it by Horizon Nursery; and that Designing Women Landscaping paid

$168,622.96 to Horizon Nursery.

16. The last specific invoice submitted to Designing Women

Landscaping was invoice no. 115783 dated April 8, 2008, in the

amount of $2,295.00. Horizon Nursery’s AR Dated Invoice/Payment

Report reflects that a payment of $2,295.00 was received by

Horizon Nursery on May 15, 2008. The payment was received

beyond 30 days of the date of the invoice. In accordance with

its Terms and Conditions of Credit, Horizon Nursery added a

service charge to Designing Women Landscaping’s account.

Additionally, in accordance with its standard operating

procedure, Horizon Nursery applied the payment first to service

charges and then to the oldest outstanding invoice. Applying

the two aforementioned procedures, Designing Women Landscaping’s

account resulted in a balance owed.

17. By a statement dated December 15, 2008, Horizon

Nursery notified Designing Women Landscaping that it had an

outstanding balance of $2,460.99, representing two outstanding

invoices: invoice no. 115542 dated December 17, 2007, in the

amount of $450.00, with a balance of $165.99, and invoice no.

115783 dated April 8, 2008 in the amount of $2,295.00, with a

balance of $2,295.00, which was the last specific invoice to

Designing Women Landscaping. Because Horizon Nursery had

applied payments from Designing Women Landscaping first to

service charges and then to the oldest outstanding invoice, the

two invoices remained outstanding even though Designing Women

Landscaping had paid the amounts indicated in the invoices.

18. Horizon Nursery’s employee responsible for accounts

receivable had several telephone conversations, regarding the

late payments, service charges, and how Horizon Nursery applied

the payments received, with Designing Women Landscaping’s

bookkeeper, who was the employee responsible, among other

things, for paying the invoices approved by Ms. Best. Designing

Women Landscaping’s bookkeeper was employed with it for nine to

12 months. At no time did Horizon Nursery discuss with or

communicate to an officer of Designing Women Landscaping

regarding the service charges, late payments, and how Horizon

Nursery applied the payments received.

19. Even though Horizon Nursery’s statement dated

December 15, 2008, and ledger reflects a balance of $2,460.99,

Horizon Nursery is claiming $2,295.00, the amount of the invoice

dated April 8, 2008.

20. Additionally, Horizon Nursery is claiming $50.00 for

filing the Amended Claim with the Department.

21. No appearance was made by the casualty company, Nova

Casualty Company.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto, pursuant to Sections 120.569 and 604.21,

Florida Statutes (2008), and Subsection 120.57(1), Florida

Statutes (2008).

23. Dealers of agricultural products are licensed by the

Department. § 604.17, Fla. Stat. (2008). Dealers must post a

bond or other security as a precondition to licensure, ensuring

payment to producers for all agricultural products purchased.

§§ 604.19 and 604.20, Fla. Stat. (2008).

24. These proceedings are de novo . § 120.57(1)(k), Fla.

Stat. (2008).

25. The general rule is that "the burden of proof, apart

from statute, is on the party asserting the affirmative of an

issue before an administrative tribunal." Florida Department of

Transportation v. J. W. C. Company, Inc. , 396 So. 2d 778, 788

(Fla. 1st DCA 1981). The burden of proof is upon Horizon

Nursery to show by a preponderance of the evidence that it is

entitled to the relief sought.

26. Horizon Nursery has met its burden. Generally, only

the parties to a contract are obligated or bound by it. 17A Am.

Jur. 2d, Contracts § 412. Designing Women Landscaping entered

into a contract with Horizon Nursery, through the Terms and

Conditions of Credit, with the terms and conditions, among

others, that Designing Women Landscaping would be able to

purchase agricultural products from Horizon Nursery on credit,

and that the purchases would be paid in-full according to the

terms on each invoice and the Terms and Conditions of Credit.

Horizon Nursery and Designing Women Landscaping agreed to be

bound by the Terms and Conditions of Credit. The payment term

on each invoice, pertinent hereto, was payable within 30 days of

the date of the invoice. The terms of the Terms and Conditions

of Credit, pertinent hereto, were that the payment was due

within 30 days from the date of the invoice, that an account was

past due if not paid within the 30-day period, and that a past

due account was subject to a service charge of 1.5 percent per

month.

27. The undersigned is persuaded that Horizon Nursery was

obligated to provide notice to Designing Women Landscaping of

its service charge for extending credit and how the service

charge would be applied. Horizon Nursery provided such notice

to Designing Women Landscaping in the Terms and Conditions of

Credit.

28. Designing Women Landscaping failed to make several

payments within the 30-day period of the date of the invoice.

Horizon Nursery applied the 1.5 percent service charge.

29. Horizon Nursery did not provide statements to

Designing Women Landscaping reflecting the service charges which

had been incurred.

30. Horizon Nursery’s standard operating procedure,

regarding late payments and how it applied late payments to

accounts that had incurred service charges, was to apply the

payments that it received first to outstanding service charges

and the balance of the payment to the oldest outstanding

invoice. Horizon Nursery did not provide notice to Designing

Women Landscaping of its standard operating procedure. The

undersigned is not persuaded that Horizon Nursery was obligated

to provide notice to Designing Women Landscaping of its standard

operating procedure.

31. Horizon Nursery did not provide statements to

Designing Women Landscaping reflecting how Horizon Nursery

applied the payments made by Designing Women Landscaping.

32. Due to Designing Women Landscaping knowing that its

payment for an invoice was due within 30 days of the date of the

invoice to avoid a 1.5 percent service charge per month and that

several of its payments were late, Designing Women Landscaping

knew that it was incurring service charges. What was unknown to

Designing Women Landscaping was the amount of the service

charges incurred and how Horizon Nursery was applying the

payments being made. The undersigned is not persuaded that

Designing Women Landscaping can now protest having incurred

service charges.

33. Consequently, no hidden charges were incurred by

Designing Women Landscaping.

34. Hence, Designing Women Landscaping is obligated to pay

all charges incurred.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Department of Agriculture and

Consumer Services enter a final order finding that Designing

Women Landscaping, Inc., d/b/a Designing Women Landscaping and

Nursery is indebted to Horizon Nursery of Florida, LC in the

amount of $2,295.00 and ordering the payment of same, plus a

filing fee of $50.00 for filing the Amended Claim.

DONE AND ENTERED this 5th day of February, 2009, in

Tallahassee, Leon County, Florida.

__________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of February, 2009.

ENDNOTE

1/ The president, Susan Hallett, did not testify at hearing.

COPIES FURNISHED:

Christopher D. Smith

114 43rd Avenue, Southwest

Vero Beach, Florida 32968

Joseph Shay

6275 West State Road 46

Sanford, Florida 32771

Susan Hallett

Designing Women Landscaping

And Nursery

6275 West State Road 46

Sanford, Florida 32771

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

Christopher E.Green, Chief

Bureau of License and Bond

Division of Marketing

407 South Calhoun Street, MS 38

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. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.