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11-003995 Vila And Son Nursery Corp. vs. Vila And Son Landscaping Corp., And Westfield Insurance Company, As Surety
 Status: Closed
Recommended Order on Thursday, September 15, 2011.

View Dockets  
Summary: Petitioner failed to appear and present evidence establishing the allegations of its complaint, namely, that Respondent owes Petitioner a sum of money for delivery of agricultural products. Recommend dismissal.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8VILA AND SON NURSERY CORP. , )

14)

15Petitioner, )

17)

18vs. ) Case No. 1 1 - 3995

26)

27VILA AND SON LANDSCAPING CORP. )

33AND WESTFIELD INSURANCE )

37COMPANY, AS SURETY , )

41)

42Respondent s . )

46)

47RECOMMENDED ORDER OF DISMISSAL

51This case came before Administr ative Law Judge John G.

61Van Lan ingham for final hearing by video teleconference on

71September 14, 2011 , at sites in Tallahassee and Miami , Florida.

81APPEARANCES

82For Peti tioner: No appearance

87For Respondent Vila and Son Landscaping Corp. :

95No appearance 1

98For Respondent Westfield Insurance Company:

103Robert E Morris, Esquire

107Morris Law Fi rm

111245 East Washington Street

115Monticello, F lorida 32344

119David A. Kotnik, Esquire

123Westfield Insurance Company

126One Park Circle

129Post Office Box 5001

133Westfield Center, O hio 44251

138S TATEMENT OF THE ISSU E

144The issue in this case is whether Respondent Vila and Son

155Landscaping Corp. owes Petitioner a sum of money for shipments

165of plants and trees.

169PRELIMINARY STATEMENT

171On July 6, 2011, Petitioner Vila and Son Nursery Corp.

181filed a claim with the Department of Agriculture and Consumer

191Services (the "Department") in which it alleged that Respondent

201Vila and Son Landscaping Corp., as purchaser, had failed to pay

212for plants and trees as agreed. Respondent Westfield Insurance

221Company was nam ed as the purchaser's surety. By letter dated

232August 5, 2011, t he Department forwarded the matter to the

243Division of Administrative Hearings.

247The final hearing took place on September 14, 2011, as

257scheduled. Petitioner failed to appear, despite having been

265duly notified of the proceeding.

270FINDINGS OF FACT

273Because no evidence was presented at the hearing, no

282finding of fact can be made.

288CONCLUSIONS OF LAW

2911 . The Division of Administrative Hearings has personal

300and subject matter jurisdiction in this p roceeding pursuan t to

311s ections 120.569 and 120.57(1), Florida Statutes.

3182. Petitioner Vila and Son Nursery Corp. bore the burden

328of proving the allegations in its complaint against Vila and Son

339Landscaping Corp. by a preponderance of the evidence. See De p't

350of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778, 788 (Fla. 1st

363DCA 1981); Florida Dep't of HRS v. Career Serv . Comm ' n , 289 So.

3782d 412, 415 (Fla. 4th DCA 1974); § 120.57(1)(j), Fla. Stat.

3893. Petitioner failed to carry its burden.

396RECOMMENDATION

397Based on the foregoing Findings of Fact and Conclusions of

407Law, it is RECOMMENDED that the Department enter a final order

418dismissing this proceeding for the failure of Petitioner to

427establish the allegations of the complaint.

433D ONE AND ENTERED this 15th day of Sept ember , 20 1 1 , in

447Tallahassee, Leon County, Florida.

451S

452___________________________________

453JOHN G. VAN LANINGHAM

457Administrative Law Judge

460Division of Administrative Hearings

464The DeSoto Building

4671230 Apalachee Parkway

470Tallahassee, Florida 32399 - 3060

475(850) 48 8 - 9675 SUNCOM 278 - 9675

484Fax Filing (850) 921 - 6847

490www.doah.state.fl.us

491Filed with the Clerk of the

497Division of Administrative Hearings

501this 15th day of September , 20 1 1 .

510ENDNOTE

5111 / Jeremy R. Firth, Esquire, has represented this Respondent in

522other administrative proce edings and, apparently because of

530that, was furnished notice of the final hearing in this case.

541Mr. Firth never made an appearance on behalf of Vila and Son

553Landscaping Corp. in this case, however, and thus ÏÏ after

563clarifying that he was not an attorney of record ÏÏ did not

575participate further in the final hearing.

581COPIES FURNISHED :

584Maria P. Vila

587Vila and Son Nursery Corporation

59220451 Southwest 216th Street

596Miami, Florida 33170

599Alan L. Goldberg

602Vila and Son Landscaping Corporation

60720451 Southwest 216th Street

611Miami, Florida 33170

614Christopher E Green, Esquire

618Department of Agriculture and

622Consumer Services

624Office of Citrus License and Bond

630Mayo Building, M - 38

635Tallahassee, Florida 32399

638David A. Kotnik, Esquire

642Westfield Insurance Company

645One Park Circle

648Post Office Box 5001

652Westfield Center, Ohio 44251

656Robert E Morris, Esquire

660Morris Law Firm

663245 East Washington Street

667Monticel lo, Florida 32344

671Honorable Adam H. Putnam

675Commissioner of Agriculture and

679Consumer Services

681The Capital, Plaza Level 10

686Tallahassee, Florida 32399 - 0810

691Lorena A. Holley , General Counsel

696Department of Agriculture and

700Consumer Services

702407 S outh Calhoun Street, Suite 520

709Tallahassee, Florida 32399 - 0800

714NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

720All parties have the right to submit written exceptions within

73015 days from the date of this Recommended Order. Any exceptions

741to this Recommended Ord er should be filed with the agency that

753will issue the Final Order in this case.

Dockets
Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 12/16/2011
Proceedings: (Agency) Final Order filed.
PDF:
Date: 12/15/2011
Proceedings: Agency Final Order
PDF:
Date: 09/15/2011
Proceedings: Recommended Order
PDF:
Date: 09/15/2011
Proceedings: Recommended Order of Dismissal cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 09/15/2011
Proceedings: Recommended Order of Dismissal (hearing held September 14, 2011). CASE CLOSED.
Date: 09/14/2011
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 09/08/2011
Proceedings: Witness and (Proposed) Exhibit List of Westfield Insurance Company (exhibits not available for viewing) filed.
PDF:
Date: 09/07/2011
Proceedings: Agency`s court reporter confirmation letter filed with the Judge.
PDF:
Date: 09/07/2011
Proceedings: Notice of Filing of Westfield Insurance Company filed.
PDF:
Date: 09/07/2011
Proceedings: Witness and (Proposed) Exhibit List of Westfield Insurance Company filed.
PDF:
Date: 09/06/2011
Proceedings: Subpoena Duces Tecum for Hearing (of FDOA) filed.
PDF:
Date: 09/01/2011
Proceedings: Agency`s court reporter confirmation letter filed with the Judge.
PDF:
Date: 08/26/2011
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/26/2011
Proceedings: Notice of Hearing by Video Teleconference (hearing set for September 14, 2011; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 08/22/2011
Proceedings: Response of Westfield Insurance Company to Initial Order of August 11, 2011 filed.
PDF:
Date: 08/11/2011
Proceedings: Initial Order.
PDF:
Date: 08/10/2011
Proceedings: Agricultural Products Dealer Claim Form filed.
PDF:
Date: 08/10/2011
Proceedings: Amendment filed.
PDF:
Date: 08/10/2011
Proceedings: Amount of Amended Claim filed.
PDF:
Date: 08/10/2011
Proceedings: Notice of Filing of an Amended Claim.
PDF:
Date: 08/10/2011
Proceedings: Notice of Appearance of Counsel and Response and Denial of Claim (filed by R. Morris).
PDF:
Date: 08/10/2011
Proceedings: Agency referral filed.

Case Information

Judge:
JOHN G. VAN LANINGHAM
Date Filed:
08/10/2011
Date Assignment:
09/12/2011
Last Docket Entry:
12/16/2011
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

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