12-003637 Greg Davenport Enterprises, Inc., D/B/A Container Grown vs. A. W. Kelley's Gardens, Inc., And Suretec Insurance, Co., As Surety Status: Closed Recommended Order on Tuesday, March 26, 2013.

Summary: Respondent owes Petitioner the amount claimed; agriculture bond should be attached to satisfy the debt.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREG DAVENPORT ENTERPRISES, )

INC., d/b/a CONTAINER GROWN , )

)

Petitioner , )

)

vs. ) Case Nos. 12 - 3637

) 12 - 3638

A. W. KELLEYÓS GARDENS, INC., )

AND SURETEC INSURANCE, CO., AS )

SURETY , )

)

Respondents . )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, the final hearing was

conducted in this case on February 19, 2013, in Naples, Florida,

before Administrative Law Judge R. Bruce McKibbe n of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Greg Davenport, pro se

Greg Davenport Enterprises, Inc.

d/b/a Container Grown

613 Corbel Drive

Naples, Florida 34110 - 1106

For Respondent: A.W. Kelley, pro se

A.W. KelleyÓs Gardens Inc.

6901 Hendry Creek Drive

Fort Myers, Florida 33908

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Greg Davenport

Enterprises, Inc., d/b/a Container Grown, is entitled to payment

from an Agricultural Bond issued to Respondent, A.W. KelleyÓs

Gardens, Inc., and, if so, the amount owed to Petitioner.

PRELIMINARY STATEMENT

This case com menced with the filing of two Agricultural

Products Dealer Claim Forms by Petitioner, each dated

September 21, 2012, with the Department of Agriculture and

Consumer Services (Department) . The claims were for $4,805 .00

and $3,170 .00 , for a total of $7,975 .00 in unpaid invoices .

Petitioner is also claiming a $50 .00 filing fee for each of the

claims.

At the final hearing, Petitioner certified on his own behalf

and offered Exhibits 1 through 3 into evidence, each of which was

accepted. Respondent testifie d on his own behalf and offered one

exhibit into evidence, which was received.

The final hearing was recorded by a licensed court reporter.

At the conclusion of the final hearing, Petitioner advised the

undersigned that the transcript would be ordered. B y rule the

parties have ten days from the date the transcript is filed at

the D ivision of Administrative Hearings to file proposed

recommended orders (PROs). Later, however, the parties advised

that no transcript was being provided. They were given ten d ays

to submit their PROs. Petitioner filed a PRO on March 12, 2013.

Respondent asked for and was given leave to submit its PRO no

later than March 19, 2013. Its PRO was received on that date.

Each partyÓs PRO was then duly considered in the preparatio n of

this Recommended Order.

FINDING S OF FACT

1. Petitioner is a licensed producer of an agricultural

product: Nursery plants and flowers. Petitioner is duly

incorporated by the State of Florida and is in good standing.

Greg Davenport is listed as Direc tor and President of the

corporation in the Division of CorporationsÓ web - based records.

2. Respondent is a duly incorporated Florida corporation.

Its business address is 6901 Hendry Creek Drive, Ft. Myers,

Florida. The directors of the corporation are listed as Dixie

Kelley, Drew Kelley, and Kent Kelley. Respondent is a plant

retail business.

3. Respondent has been a customer of Petitioner for many

years, going back as far as 2006 according to evidence submitted

at final hearing. During that time, R espondent has purchased

approximately $91,000 .00 worth of goods from Petitioner. (In its

PRO, Respondent says the relationship goes back 25 years or more,

but there was no sworn testimony to that effect.)

4. During the period March 22 through May 24, 201 2,

Respondent ordered numerous items from Petitioner for which he

was billed in accordance with standard practices. The following

invoices provide the invoice number, date of invoice, and amount

of purchase:

Invoice 1399 - March 22, 2012 - $1,570.00

Invoi ce 1818 Î March 27, 201 2 - $2,105.00

Invoice 1391 Î April 10, 2012 - $1,130.00

Invoice 1303 Î April 25, 2012 - $ 850.00

Invoice 1419 Î May 16, 2012 - $1,145.00

Invoice 1431 Î May 24, 2012 - $1,175.00

TOTAL - $7,975.00

5. Petitioner contacted Respondent on numerous occasions to

request payment on the outstanding invoices. Those efforts were

in vain. At first , Respondent would make empty promises to pay,

but ultimately just refused to accept PetitionerÓs calls.

Meanwhile, RespondentÓs owner relocated to North Carolina,

causing Petitioner to fear that payment may never be forthcoming.

6. Respondent made some promises to make payments Ðwhenever

he couldÑ to satisfy the debt. He said, however, that even if he

could not pay, Petitioner should not attach hi s agriculture bond.

RespondentÓs failure to make any promised payments was the basis

for Petitioner seeking payment by way of the bond.

7. Respondent does not deny his failure to pay the

outstanding invoices. He does not dispute that the products he

rec eived were of acceptable quality. He does, in fact, admit his

indebtedness to Petitioner.

8. Respondent does not feel his bond should be attached for

payment of this debt. He cites , as reasons , that: 1) h is

business suffered during the national financi al crisis; 2) t here

was some embezzlement going on in his business that affected his

ability to pay obligees; 3) t here is a related civil lawsuit

underway in circuit court relating to the embezzlement; and 4)

Davenport and Kelley have been friends for a lo ng time and thus

he should be allowed more time to pay the invoices.

9. RespondentÓs PRO sets forth other bases for why he

believes it would be improper to attach his agriculture bond.

However, none of those bases was addressed by sworn witnesses at

fina l hearing and are thus not evidence in this case. Further,

Respondent contends that two witnesses he subpoenaed but failed

to show up for final hearing prejudiced his case. He did not

prove, however, that either of the supposed witnesses had been

properl y served. RespondentÓs PRO also sets forth facts not

elicited through testimony or documentary evidence during final

hearing. Respondent relies in part on various documents

exchanged between the parties during discovery, but none of those

were offered in to evidence and thus are not part of the record.

10. Respondent acquired a bond through Suretec Insurance

Company. The amount of the bond was not disclosed at final

hearing but, per statute, must be at least $5,000 .00 . The surety

company was not represe nted at final hearing. No defense was

raised by the surety company concerning PetitionerÓs attempt to

attach the bond.

11. Petitioner is entitled to payment in the amount of

$7,975 .00 for the products it provided to Respondent.

12. Besides the amount se t forth above, Petitioner claims

the sum of $100 .00 paid for the filing of his two claims against

RespondentÓs bond.

13. The total sum owed to Petitioner by Respondent is

$8,075.00.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

juris diction over the parties to and the subject matter of this

proceeding pursuant to s ections 120.569 and 120.57(1), Florida

Statutes (2012). (Unless specifically stated otherwise herein,

all references to Florida Statutes shall be to the 2012

codification.)

15. The burden of proof in an administrative proceeding is

on the party asserting the affirmative of an issue. Dep Ó t of

Banking & Fin . , Div . of Sec . & Inv . Prot . v. Osbourne , Stern &

Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987); Evans Packing Co. v. De pÓ t of Agric . & Consumer

Servs . , 550 So. 2d 112 (Fla. 1st DCA 1989). In this case,

Petitioner must prove by a preponderance of the evidence that it

provided goods or services to Respondent and that Respondent

failed to pay for such goods or services. Based upon the

testimony at final hearing, offered in full candor by each

witness, it is clear there is no dispute as to receipt of goods

by Respondent , and Petitioner was not paid for those goods.

16. RespondentÓs defen se, i.e., that there are other

actions pending and potentially intervening causes, is rejected.

There is no competent or persuasive evidence to support that

contention. Even so, such actions would not prevent Petitioner

from seeking remedies allowed by l aw.

17. Section 604.21, Fl orid a Stat utes , sets forth the

process for attaching a bond when a bonded party fails to make

payments for purchased goods or services. Petitioner has

complied with the requirements of that statutory section.

RECOMMENDATION

Base d upon the findings of fact and conclusions of law set

forth above, it is hereby RECOMMENDED that:

1. Respondent shall pay to Petitioner, within 15 days of

the entry of the Final Order, the sum of $8,075.00;

2. If Respondent fails to timely make the afo rementioned

payment, the Department shall call upon Suretec Surety Company to

pay over to the Department the full amount of RespondentÓs bond;

and

3. The Department shall then turn the proceeds of the bond

over to Petitioner to satisfy the debt that has b een established.

DONE AND ENTERED this 26th day of March , 2013 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Pa rkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 6 th day of March , 2013 .

COPIES FURNISHED:

Christopher E. Green, Esquire

Departmen t of Agriculture and

Consumer Services

Office of Citrus License and Bond

Mayo Building, M - 38

Tallahassee, Florida 32399 - 0800

Michael Cronin

SureTec Insurance Company

Suite 320

9737 Great Hills Trail

Austin, Texas 78759

Greg Davenport

Greg Davenport E nterprises, Inc.

d/b/a Container Grown

613 Corbel Drive

Naples, Florida 34110 - 1106

Kent O. Kelley

A. W. KelleyÓs Gardens Inc.

6901 Hendry Creek Drive

Fort Myers, Florida 33908

Lorena Holley, General Counsel

Department of Agriculture and

Consumer S ervices

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

Honorable Adam Putnam

Commissioner of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

NOTICE OF RIGH T 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.