08-006019 Harmon Sod, Llc vs. T And J Sod Service, Inc., And Great American Insurance Company, As Surety Status: Closed Recommended Order on Thursday, March 5, 2009.

Summary: The dealer in agricultural products owed the producer the sums alleged.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARMON SOD, LLC., )

)

Petitioner, )

)

vs. ) Case No. 08-6019

)

T AND J SOD SERVICE, INC., AND )

GREAT AMERICAN INSURANCE )

COMPANY, AS SURETY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted on February 4, 2009, in Fort Pierce, Florida, before

Administrative Law Judge Claude B. Arrington of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: John F. Wuchte , pro se

Patty Stanton, pro se

Harmon Sod Company, LLC

Post Office Box 1178

Fort Pierce, Florida 34954

For Respondent T and J Sod Service, Inc.:

Jose A. Gonzalez, pro se

T and J Sod Service, Inc.

5414 North US Highway 1

Fort Pierce, Florida 34956

For Respondent Great American Insurance Company:

No appearance

STATEMENT OF THE ISSUES

Whether Respondent T and J Sod Service, Inc. (T and J Sod)

is indebted to Petitioner for agricultural products (the sale of

sod represented by Trip Tickets 11902 and 11917), and, if so,

the amount of the indebtedness. Whether Respondent Great

American Insurance Company is liable to Petitioner for any

unpaid indebtedness owed Petitioner by T and J Sod.

PRELIMINARY STATEMENT

Petitioner, Harmon Sod, LCC (Harmon Sod), has sold sod to

T and J Sod since 2004. By “Agricultural Products Claim Form”

dated September 25, 2008, and received by the Florida Department

of Agriculture and Consumer Services (the Department) on

October 6, 2008, Harmon Sod claimed that T and J Sod had not

paid for sod Harmon Sod sold to T and J Sod in the amount of

$4,243.27. Respondent, Great American Insurance Company (Great

American), was identified as T and J Sod’s surety. T and J Sod

timely denied the claim, the matter was referred to DOAH, and

this proceeding followed.

At the final hearing, Petitioner presented the testimony of

Ronald Wuchte, Tommy Wuchte, Lisa Kidd, and Patty Stanton. Each

of Petitioner’s witnesses is employed by Harmon Sod. Petitioner

offered six sequentially-numbered Exhibits, each of which was

admitted into evidence. T and J Sod presented the testimony of

Jose Gonzalez, the owner of T and J Sod, and offered one

Exhibit, which was accepted into evidence.

Prior to the formal hearing, T and J Sod paid to Harmon Sod

an amount that it considered to be payment in full. The only

issue remaining at the formal hearing was whether T and J Sod

purchased the sod represented by Trip Ticket 11902 and Trip

Ticket 11917.

All statutory references are to Florida Statutes (2008).

No transcript of the proceedings has been filed. T and J

Sod filed a post-hearing submittal, in the form of a letter,

which has been considered by the undersigned in the preparation

of this Recommended Order. Neither Harmon Sod nor Great

American Insurance Company filed a post-hearing submittal.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Harmon Sod

was a producer of agricultural products within the meaning of

Subsection 604.15(9), Florida Statutes. 1 Sod is an agricultural

product within the meaning of Subsection 604.15(1), Florida

Statutes. 2

2. At all times relevant to this proceeding, T and J Sod

was a “dealer in agricultural products” within the meaning of

Subsection 604.15(2), Florida Statutes. 3

3. At all times relevant to this proceeding, T and J Sod

was licensed as a dealer in agricultural products by the

Department.

4. At all times relevant to this proceeding, Great

American Insurance Company served as surety for T and J Sod.

5. At all times relevant to this proceeding, T and J Sod

was a customer of Harmon Sod. T and J Sod purchased sod from

Harmon Sod and thereafter resold and installed the sod to T and

J Sod’s customers.

6. Harmon Sod sold to its customers sod on wooden pallets.

An integral part of each transaction involved the pallet. If a

customer did not give Harmon Sod an empty pallet when it

purchased a pallet of sod, Harmon Sod charged the customer for

the sod and an additional $5.00 for the pallet.

7. There was a dispute whether T and J Sod purchased the

sod represented by Trip Ticket 19902 or by Trip Ticket 11917.

Mr. Gonzalez testified that his driver did not sign for the sod

on either Trip Ticket and that he did not receive the pallets of

sod represented by either Trip Ticket.

8. As to Trip Ticket 11902, the greater weight of the

credible evidence established that on Friday, April 25, 2008,

Harmon Sod had six extra pallets of Bahia sod. Tommy Wuchte

wanted to sell the sod so it would not sit on the pallets over

the weekend. Tommy Wuchte testified, credibly, that he called

Mr. Gonzalez and asked if could use the sod. Mr. Gonzalez

agreed to purchase the six pallets of sod. Tommy Wuchte

thereafter delivered the six pallets of sod to T and J Sod and

signed his name on the Trip Ticket 11902. As to Trip Ticket

11902, T and J Sod is indebted to Harmon Sod in the amount of

$148.50 plus tax in the amount of $9.65 (at the rate of 6.5

percent) for six pallets of sod and $30.00 for six pallets at

$5.00 per pallet, for a total of $188.15.

9. As to Trip Ticket 1197, the greater weight of the

evidence established that on Tuesday, April 29, 2008,

Mr. Gonzalez called Tommy Wuchte and told him that he was

sending a contract driver to pick up 18 pallets of Bahia sod.

Mr. Gonzalez told Tommy Wuchte that he had fired his regular

driver. On April 29, 2008, a contract driver came to the sod

farm where Harmon Sod was cutting sod, and told Ronald Wuchte

that he was picking up the 18 pallets of sod for T and J Sod.

Ronald Wuchte loaded the 18 pallets of sod on the driver’s truck

and had the driver sign Trip Ticket 1197. As to Trip Ticket

1197, T and J Sod is indebted to Harmon Sod in the amount of

$445.50 plus tax in the amount of $28.96 (at the rate of

6.5 percent) for the 18 pallets of sod and $90.00 for 18 empty

pallets at $5.00 per pallet, for a total of $564.46.

10. Harmon Sod had to pay a $50.00 filing fee to file this

claim, for which it is entitled to reimbursement from T and J

Sod pursuant to Subsection 604.21(1)(a), Florida Statutes.

11. T and J Sod is indebted to Harmon Sod in the total

amount of $802.61. 4

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

case pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

13. Petitioner, who is asserting the affirmative of the

issues in this case, has the burden of proving by a

preponderance of the evidence that Respondents are indebted to

it in the amounts claimed. See Balino v. Department of Health

and Rehabilitative Services , 348 So. 2d 349, 350 (Fla. 1st DCA

1977); and Department of Transportation v. J.W.C. Co., Inc. , 396

So. 2d 778 (Fla. 1st DCA 1981).

14. The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

15. Harmon Sod established by the requisite standard that

T and J Sod is indebted to it in the amount of $802.61.

16. Section 604.21, Florida Statutes, pertains to

complaints by producers of agricultural products against dealers

of agricultural products and their surety. Subsections

604.21(1), (7), and (8), Florida Statutes, provide, in relevant

part, as follows:

(1) . . . Before a complaint can be

processed, the complainant must provide the

department with a $50 filing fee. In the

event the complainant is successful in

proving the claim, the dealer in

agricultural products shall reimburse the

complainant for the $50 filing fee as part

of the settlement of the claim.

* * *

(7) Any indebtedness set forth in a

departmental order against a dealer 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 company to pay over to the department

out of the bond posted by the surety company

for such dealer or . . . the amount called

for in the order of the department, not

exceeding the amount of the bond . . .

. . .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department enter a final order

adopting the Findings of Fact and Conclusions of Law contained

in this Recommended Order. Pursuant to Subsection 604.21(7),

Florida Statutes, T and J Sod should be ordered to pay to Harmon

Sod the sum of $802.61 within 15 days of the entry of the Final

Order. Pursuant to Subsection 604.21(8), Florida Statutes,

Great American Insurance Company, as surety, should be ordered

to pay to Harmon Sod the sum of $802.61 should T and J Sod fails

to timely make that payment.

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

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of March, 2009.

ENDNOTES

1 / Subsection 604.15(9), Florida Statutes, defines the term

in the state.”

2 / Subsection 604.15(1), Florida Statutes, explicitly includes

sod in its definition of the term “an agricultural product.”

3 / Subsection 604.15(2), Florida Statutes, defines the term

“dealer in agricultural products”, in relevant part, to include

“ . . . any person, partnership, corporation, or other business

entity . . . 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. . .”

4/ Harmon Sod did not seek interest on the indebtedness.

COPIES FURNISHED :

Jose A. Gonzalez

Wanda Simmons

T & J Sod Service, Inc.

5414 North US Highway 1

Fort Pierce, Florida 34946

Great American Insurance Company

580 Walnut Street

Cincinnati, Ohio 45202

Gerald A. Dibartolomeo, Jr.

T & J Sod Service, Inc.

2222 Colonial Road, Suite 200

Fort Pierce, Florida 34950

Christopher E. Green, Esquire

Department of Agriculture and

Consumer Services

Office of Citrus License and Bond

Mayo Building, M-38

Tallahassee, Florida 32399-0800

John Wuchte

Patty Stanton

Harmon Sod Company, LLC

Post Office Box 1178

Fort Pierce, Florida 34954

Richard Tritschler, 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 agency that

will issue the Final Order in this case.