09-001278 Bud Sod, Llc vs. Fyv, Inc., D/B/A Miami Tropical Nursery, Inc., And Fidelity And Deposit Company Of Maryland, As Surety Status: Closed Recommended Order on Monday, August 9, 2010.

Summary: Respondent failed to remit monies owed for agricultural product; therefore, Petitioner is entitled to recover against the bond.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BUD SOD, LLC, )

)

Petitioner, )

)

vs. ) Case No. 09-1278

)

FYV, INC., d/b/a MIAMI TROPICAL )

NURSERY, INC., AND FIDELITY AND )

DEPOSIT COMPANY OF MARYLAND, AS )

SURETY, )

)

Respondents. )

_________________________________)

RECOMMENDED ORDER

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

July 7, 2010, by video teleconference with the parties to appear

from Fort Myers, Florida, before J. D. Parrish, a designated

Administrative Law Judge of the Division of Administrative

Hearings in Tallahassee, Florida.

APPEARANCES

For Petitioner: Steven L. Polhemus, Esquire

Post Office Box 2188

LaBelle, Florida 33975

For Respondent FYV, INC., d/b/a Miami Tropical Nursery,

Inc.:

(No appearance)

For Respondent Fidelity and Deposit Company of Maryland, as Surety:

(No appearance)

STATEMENT OF THE ISSUE

Whether Respondent, FYV, Inc., d/b/a Miami Tropical

Nursery, Inc. (Respondent or Buyer), owes Petitioner, Bud Sod,

LLC (Petitioner or Seller), the sum of $7,168.09 for pallets of

sod sold to the Buyer by the Seller.

PRELIMINARY STATEMENT

Petitioner filed a complaint with the Florida Department of

Agriculture and Consumer Services (Department) that alleged

Respondent had failed to comply with an agreement regarding the

purchase of sod. Petitioner alleged that the Buyer owed the

Seller in excess of $15,000 for bahia sod sold in pallets to

Respondent. Petitioner seeks compensation for the sod against

the Buyer and its surety. Fidelity and Deposit Company of

Maryland was identified as the surety for Respondent. The case

was forwarded to the Division of Administrative Hearings for

formal proceedings on March 13, 2009.

Thereafter, the case was continued on numerous occasions

primarily because the parties continued to negotiate the amount

claimed to be owed. At one point, a civil mediator was to work

with the parties to establish the amount owed. The case

involved many tickets and invoices along with copies of drafts

showing payment for the type and volume of product delivered.

Finally, the principals for the two companies involved, Yolanda

More (for Respondent) and Tanya Carter (for Petitioner), met to

sort through the invoices and payments to reach an amount

claimed to be due and owing. As a result of that meeting, the

parties agreed that Respondent would remit a specified sum. In

accordance with the agreement, Respondent transferred $10,000 to

Petitioner. The remainder of the amount claimed was not paid.

Prior to hearing, Respondent's counsel was permitted to

withdraw. At the final hearing, Petitioner presented the

testimony of Tanya Carter. No one appeared for Respondent, and

no evidence was presented on Respondent's behalf on July 7,

2010.

A transcript of the proceeding has not been filed and one

is not expected. The parties were granted ten days from the

conclusion of the hearing within which to file a proposed

recommended order. Neither party has filed a proposed order.

Notice of the hearing was provided to all parties of record,

including the surety.

FINDINGS OF FACT

1. At all times material to the instant case, Petitioner

and Respondent were involved in the purchase and sale of an

agricultural product grown and delivered in Florida.

2. Under the terms of their on-going business

relationship, Petitioner supplied Respondent with sod. There is

no disagreement that Petitioner produced and sold the sod to

Respondent. In fact, the parties had numerous dealings that

covered many tickets noting deliveries and invoices noting the

monies owed.

3. Prior to July 7, 2010, the parties met without their

attorneys to try and agree upon an amount owed by Respondent.

At that time, they went through the volumes of paperwork related

to the claim and reached a mutually-acceptable decision.

4. Petitioner maintains that Respondent owes $17,168.09 as

a compromised sum for the sod sold by Petitioner to Respondent.

Of that amount, Petitioner acknowledges that Respondent remitted

$10,000 to the Seller.

5. Accordingly, Petitioner asserts that the sum of

$7,168.09 is owed and unpaid for the sod purchased by

Respondent. Respondent presented no evidence to refute this

amount.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.57 and 120.60, Fla. Stat. (2009).

7. Agriculture is an important industry in the State of

Florida. Accordingly, the Legislature has recognized:

. . . that the recovery of agricultural

products is impractical because of the speed

with which such products move through

commerce and because of the difficulty of

identification and that, because recovery is

impractical, producers are subject to the

possibility of serious economic harm in the

event an agricultural products dealer

defaults. Therefore, it is necessary in the

interest of the public welfare to regulate

agricultural products dealers in this state.

See § 604.151, Fla. Stat. (2009).

8. Section 604.15, Florida Statutes (2009), provides, in

part:

For the purpose of ss. 604.15 -604.34, the

following words and terms, when used, shall

be construed to mean:

(1) "Agricultural products" means the

natural products of the farm, nursery,

grove, orchard, vineyard, garden, and apiary

(raw or manufactured); sod; tropical

foliage; horticulture; hay; livestock; milk

and milk products; poultry and poultry

products; the fruit of the saw palmetto

(meaning the fruit of the Serenoa repens );

limes (meaning the fruit Citrus

aurantifolia , variety Persian, Tahiti,

Bearss, or Florida Key limes); and any other

nonexempt agricultural products produced in

the state, except tobacco, sugarcane, timber

and timber byproducts, forest products as

defined in s. 591.17 , and citrus other than

limes.

(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 basis; or acting as a

negotiating broker between the producer or

the producer's agent or representative and

the buyer.

9. Section 604.21, Florida Statutes (2009), provides a

mechanism for anyone damaged by a breach of the terms of an

agreement given by a dealer in agricultural products to file a

complaint against the dealer (herein Respondent) and its surety

to seek compensation for the alleged breach. The complaint is

processed by the Department.

10. In this case, Petitioner made just such a complaint,

and the matter was duly-forwarded to the Division of

Administrative Hearings for an evidentiary proceeding to resolve

the disputed issues of fact.

11. A hearing held in accordance with Subsection

120.57(1), Florida Statutes (2009), on the complaint must be

conducted if there are disputed issues of material fact.

Petitioner has the burden of proving the allegations of the

complaint by a preponderance of the evidence. See Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932, 934

(Fla. 1996)("The general rule is that a party asserting the

affirmative of an issue has the burden of presenting evidence as

to that issue"); Florida Department of Transportation v. J.W.C.

Company, Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

12. In this case, Petitioner has met that burden.

Petitioner has established by a preponderance of the evidence

that Respondent owes the sum of $7,168.09 for agricultural

product sold to the Buyer by Petitioner. It is incumbent on

Respondent to remit that amount to Petitioner to satisfy the

indebtedness for the product purchased.

13. Further, in accordance with Subsection 604.21(1)(g),

Florida Statutes (2009):

(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.

14. Thus, should Respondent fail to remit the appropriate

amount as directed by the Department, the surety should be held

responsible for the amount owed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Department of Agriculture and Consumer

Services enter a final order approving Petitioner's complaint

against Respondent in the amount of $7,168.09.

DONE AND ENTERED this 9th day of August, 2010, in

Tallahassee, Leon County, Florida.

J. D. PARRISH

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 9th day of August, 2010.

COPIES FURNISHED :

Christopher E. Green, Esquire

Department of Agriculture and

Consumer Services

Office of Citrus License and Bond

Mayo Building, M-38

Tallahassee, Florida 32399-0800

Kathy Alves

Fidelity & Deposit Company of Maryland

Post Office Box 968036

Schaumberg, Illinois 60196

Steven J. Polhemus, Esquire

Post Office Box 2188

LaBelle, Florida 33975

Yolanda More

FYV, Inc., d/b/a Miami Tropical

Nursery, Inc.

104475 Overseas Highway

Key Largo, Florida 33037

Richard Ditschler, General Counsel

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

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.