12-003638
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.
Recommended Order on Tuesday, March 26, 2013.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8GREG DAVENPORT ENTERPRISES, )
12INC., d/b/a CONTAINER GROWN , )
17)
18Petitioner , )
20)
21vs. ) Case Nos. 12 - 3637
28) 12 - 3638
32A. W. KELLEYÓS GARDENS, INC., )
38AND SURETEC INSURANCE, CO., AS )
44SURETY , )
46)
47Respondents . )
50)
51RECOMMENDED ORDER
53Pursuant to notice to all parties, the final hearing was
63conducted in this case on February 19, 2013, in Naples, Florida,
74before Administrative Law Judge R. Bruce McKibbe n of the Division
85of Administrative Hearings.
88APPEARANCES
89For Petitioner: Greg Davenport, pro se
95Greg Davenport Enterprises, Inc.
99d/b/a Container Grown
102613 Corbel Drive
105Naples, Florida 34110 - 1106
110For Respondent: A.W. Kelley, pro se
116A.W. KelleyÓs Gardens Inc.
1206901 Hendry Creek Drive
124Fort Myers, Florida 33908
128STATEMENT OF THE ISSUE
132The issue in this case is whether Petitioner, Greg Davenport
142Enterprises, Inc., d/b/a Container Grown, is entitled to payment
151from an Agricultural Bond issued to Respondent, A.W. KelleyÓs
160Gardens, Inc., and, if so, the amount owed to Petitioner.
170PRELIMINARY STATEMENT
172This case com menced with the filing of two Agricultural
182Products Dealer Claim Forms by Petitioner, each dated
190September 21, 2012, with the Department of Agriculture and
199Consumer Services (Department) . The claims were for $4,805 .00
210and $3,170 .00 , for a total of $7,975 .00 in unpaid invoices .
225Petitioner is also claiming a $50 .00 filing fee for each of the
238claims.
239At the final hearing, Petitioner certified on his own behalf
249and offered Exhibits 1 through 3 into evidence, each of which was
261accepted. Respondent testifie d on his own behalf and offered one
272exhibit into evidence, which was received.
278The final hearing was recorded by a licensed court reporter.
288At the conclusion of the final hearing, Petitioner advised the
298undersigned that the transcript would be ordered. B y rule the
309parties have ten days from the date the transcript is filed at
321the D ivision of Administrative Hearings to file proposed
330recommended orders (PROs). Later, however, the parties advised
338that no transcript was being provided. They were given ten d ays
350to submit their PROs. Petitioner filed a PRO on March 12, 2013.
362Respondent asked for and was given leave to submit its PRO no
374later than March 19, 2013. Its PRO was received on that date.
386Each partyÓs PRO was then duly considered in the preparatio n of
398this Recommended Order.
401FINDING S OF FACT
4051. Petitioner is a licensed producer of an agricultural
414product: Nursery plants and flowers. Petitioner is duly
422incorporated by the State of Florida and is in good standing.
433Greg Davenport is listed as Direc tor and President of the
444corporation in the Division of CorporationsÓ web - based records.
4542. Respondent is a duly incorporated Florida corporation.
462Its business address is 6901 Hendry Creek Drive, Ft. Myers,
472Florida. The directors of the corporation are listed as Dixie
482Kelley, Drew Kelley, and Kent Kelley. Respondent is a plant
492retail business.
4943. Respondent has been a customer of Petitioner for many
504years, going back as far as 2006 according to evidence submitted
515at final hearing. During that time, R espondent has purchased
525approximately $91,000 .00 worth of goods from Petitioner. (In its
536PRO, Respondent says the relationship goes back 25 years or more,
547but there was no sworn testimony to that effect.)
5564. During the period March 22 through May 24, 201 2,
567Respondent ordered numerous items from Petitioner for which he
576was billed in accordance with standard practices. The following
585invoices provide the invoice number, date of invoice, and amount
595of purchase:
597Invoice 1399 - March 22, 2012 - $1,570.00
606Invoi ce 1818 Î March 27, 201 2 - $2,105.00
617Invoice 1391 Î April 10, 2012 - $1,130.00
626Invoice 1303 Î April 25, 2012 - $ 850.00
635Invoice 1419 Î May 16, 2012 - $1,145.00
644Invoice 1431 Î May 24, 2012 - $1,175.00
653TOTAL - $7,975.00
6575. Petitioner contacted Respondent on numerous occasions to
665request payment on the outstanding invoices. Those efforts were
674in vain. At first , Respondent would make empty promises to pay,
685but ultimately just refused to accept PetitionerÓs calls.
693Meanwhile, RespondentÓs owner relocated to North Carolina,
700causing Petitioner to fear that payment may never be forthcoming.
7106. Respondent made some promises to make payments Ðwhenever
719he couldÑ to satisfy the debt. He said, however, that even if he
732could not pay, Petitioner should not attach hi s agriculture bond.
743RespondentÓs failure to make any promised payments was the basis
753for Petitioner seeking payment by way of the bond.
7627. Respondent does not deny his failure to pay the
772outstanding invoices. He does not dispute that the products he
782rec eived were of acceptable quality. He does, in fact, admit his
794indebtedness to Petitioner.
7978. Respondent does not feel his bond should be attached for
808payment of this debt. He cites , as reasons , that: 1) h is
820business suffered during the national financi al crisis; 2) t here
831was some embezzlement going on in his business that affected his
842ability to pay obligees; 3) t here is a related civil lawsuit
854underway in circuit court relating to the embezzlement; and 4)
864Davenport and Kelley have been friends for a lo ng time and thus
877he should be allowed more time to pay the invoices.
8879. RespondentÓs PRO sets forth other bases for why he
897believes it would be improper to attach his agriculture bond.
907However, none of those bases was addressed by sworn witnesses at
918fina l hearing and are thus not evidence in this case. Further,
930Respondent contends that two witnesses he subpoenaed but failed
939to show up for final hearing prejudiced his case. He did not
951prove, however, that either of the supposed witnesses had been
961properl y served. RespondentÓs PRO also sets forth facts not
971elicited through testimony or documentary evidence during final
979hearing. Respondent relies in part on various documents
987exchanged between the parties during discovery, but none of those
997were offered in to evidence and thus are not part of the record.
101010. Respondent acquired a bond through Suretec Insurance
1018Company. The amount of the bond was not disclosed at final
1029hearing but, per statute, must be at least $5,000 .00 . The surety
1043company was not represe nted at final hearing. No defense was
1054raised by the surety company concerning PetitionerÓs attempt to
1063attach the bond.
106611. Petitioner is entitled to payment in the amount of
1076$7,975 .00 for the products it provided to Respondent.
108612. Besides the amount se t forth above, Petitioner claims
1096the sum of $100 .00 paid for the filing of his two claims against
1110RespondentÓs bond.
111213. The total sum owed to Petitioner by Respondent is
1122$8,075.00.
1124CONCLUSIONS OF LAW
112714. The Division of Administrative Hearings has
1134juris diction over the parties to and the subject matter of this
1146proceeding pursuant to s ections 120.569 and 120.57(1), Florida
1155Statutes (2012). (Unless specifically stated otherwise herein,
1162all references to Florida Statutes shall be to the 2012
1172codification.)
117315. The burden of proof in an administrative proceeding is
1183on the party asserting the affirmative of an issue. Dep Ó t of
1196Banking & Fin . , Div . of Sec . & Inv . Prot . v. Osbourne , Stern &
1214Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d
1227292 (Fla. 1987); Evans Packing Co. v. De pÓ t of Agric . & Consumer
1242Servs . , 550 So. 2d 112 (Fla. 1st DCA 1989). In this case,
1255Petitioner must prove by a preponderance of the evidence that it
1266provided goods or services to Respondent and that Respondent
1275failed to pay for such goods or services. Based upon the
1286testimony at final hearing, offered in full candor by each
1296witness, it is clear there is no dispute as to receipt of goods
1309by Respondent , and Petitioner was not paid for those goods.
131916. RespondentÓs defen se, i.e., that there are other
1328actions pending and potentially intervening causes, is rejected.
1336There is no competent or persuasive evidence to support that
1346contention. Even so, such actions would not prevent Petitioner
1355from seeking remedies allowed by l aw.
136217. Section 604.21, Fl orid a Stat utes , sets forth the
1373process for attaching a bond when a bonded party fails to make
1385payments for purchased goods or services. Petitioner has
1393complied with the requirements of that statutory section.
1401RECOMMENDATION
1402Base d upon the findings of fact and conclusions of law set
1414forth above, it is hereby RECOMMENDED that:
14211. Respondent shall pay to Petitioner, within 15 days of
1431the entry of the Final Order, the sum of $8,075.00;
14422. If Respondent fails to timely make the afo rementioned
1452payment, the Department shall call upon Suretec Surety Company to
1462pay over to the Department the full amount of RespondentÓs bond;
1473and
14743. The Department shall then turn the proceeds of the bond
1485over to Petitioner to satisfy the debt that has b een established.
1497DONE AND ENTERED this 26th day of March , 2013 , in
1507Tallahassee, Leon County, Florida.
1511S
1512R. BRUCE MCKIBBEN
1515Administrative Law Judge
1518Division of Administrative Hearings
1522The DeSoto Building
15251230 Apalachee Pa rkway
1529Tallahassee, Florida 32399 - 3060
1534(850) 488 - 9675
1538Fax Filing (850) 921 - 6847
1544www.doah.state.fl.us
1545Filed with the Clerk of the
1551Division of Administrative Hearings
1555this 2 6 th day of March , 2013 .
1564COPIES FURNISHED:
1566Christopher E. Green, Esquire
1570Departmen t of Agriculture and
1575Consumer Services
1577Office of Citrus License and Bond
1583Mayo Building, M - 38
1588Tallahassee, Florida 32399 - 0800
1593Michael Cronin
1595SureTec Insurance Company
1598Suite 320
16009737 Great Hills Trail
1604Austin, Texas 78759
1607Greg Davenport
1609Greg Davenport E nterprises, Inc.
1614d/b/a Container Grown
1617613 Corbel Drive
1620Naples, Florida 34110 - 1106
1625Kent O. Kelley
1628A. W. KelleyÓs Gardens Inc.
16336901 Hendry Creek Drive
1637Fort Myers, Florida 33908
1641Lorena Holley, General Counsel
1645Department of Agriculture and
1649Consumer S ervices
1652407 South Calhoun Street, Suite 520
1658Tallahassee, Florida 32399 - 0800
1663Honorable Adam Putnam
1666Commissioner of Agriculture
1669Department of Agriculture and
1673Consumer Services
1675The Capitol, Plaza Level 10
1680Tallahassee, Florida 32399 - 0810
1685NOTICE OF RIGH T TO SUBMIT EXCEPTIONS
1692All parties have the right to submit written exceptions within
170215 days from the date of this Recommended Order. Any exceptions
1713to this Recommended Order should be filed with the agency that
1724will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 03/26/2013
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 02/19/2013
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 02/15/2013
- Proceedings: Exibit (sic) Concerning Compliance with Court's Order of Pre-hearing Instructions filed.
- Date: 02/14/2013
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 01/22/2013
- Proceedings: Respondent's (Amended) Compliance with Court's Order of Pre-hearing Instructions filed.
- PDF:
- Date: 01/17/2013
- Proceedings: Agency`s court reporter confirmation letter filed with the Judge.
- PDF:
- Date: 01/11/2013
- Proceedings: Order on Outstanding Motions and Ore Tenus Motion for Continuance (hearing set for February 19, 2013; 9:00 a.m.; Naples, FL).
- Date: 01/09/2013
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 01/09/2013
- Proceedings: Notice of Service of Respondent's Second Set of Interrogatories to Petitioner filed.
- PDF:
- Date: 01/04/2013
- Proceedings: Motion to Determine Approiateness of Production of Documents. Question #8, 9, 10, 11, 12, and 13 filed.
- PDF:
- Date: 12/28/2012
- Proceedings: Respondent's Second Set of Interrogatories to Petitioner (filed in Case No. 12-003638).
- PDF:
- Date: 12/28/2012
- Proceedings: Respondent's Second Set of Interrogatories to Petitioner (filed in Case No. 12-003638).
- PDF:
- Date: 12/28/2012
- Proceedings: Notice of Service of Respondent's Second Set of Interrogatories to Petitioner (filed in Case No. 12-003638).
- PDF:
- Date: 12/28/2012
- Proceedings: Notice of Service of Respondent's Second Set of Interrogatories to Petitioner filed.
- PDF:
- Date: 12/26/2012
- Proceedings: (Petitioner's Answers to Respondent's First Set of Interrogatories to Plaintiff) Notice of Service of Respondent's First Set of Interrogatories to Plaintiff filed.
- PDF:
- Date: 12/26/2012
- Proceedings: Response to Petitioner's Answer of First Request for Production of Documents to Plaintiff (filed in Case No. 12-003638).
- PDF:
- Date: 12/26/2012
- Proceedings: Response to Petitioner's Answer of First Request for Production of Documents to Plaintiff filed.
- PDF:
- Date: 12/20/2012
- Proceedings: Regarding the Respondent's First Request for Production of Documents filed.
- PDF:
- Date: 12/20/2012
- Proceedings: Respondent's First Request for Production of Documents to Plaintiff filed.
- PDF:
- Date: 12/20/2012
- Proceedings: Respondent's First Request for Production of Documents to Plaintiff filed.
- PDF:
- Date: 12/17/2012
- Proceedings: Respondent's First Set of Interrogatories to Plaintiff (filed in Case No. 12-003638).
- PDF:
- Date: 12/17/2012
- Proceedings: Notice of Service of Respondents First Set of Interogatories to Plaintiff (filed in Case No. 12-003638).
- PDF:
- Date: 12/17/2012
- Proceedings: Notice of Service of Respondents First Set of Interogatories to Plaintiff filed.
- PDF:
- Date: 12/11/2012
- Proceedings: Agency`s court reporter confirmation letter filed with the Judge.
- PDF:
- Date: 12/05/2012
- Proceedings: Notice of Hearing (hearing set for January 15, 2013; 9:00 a.m.; Naples, FL).
Case Information
- Judge:
- R. BRUCE MCKIBBEN
- Date Filed:
- 11/09/2012
- Date Assignment:
- 02/15/2013
- Last Docket Entry:
- 06/24/2013
- Location:
- Naples, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO
Counsels
-
Michael Cronin
Address of Record -
Greg Davenport
Address of Record -
Christopher E. Green, Esquire
Address of Record -
Kent O. Kelley
Address of Record