13-000101 H.P. Sod, Inc. vs. Psl Landscape Services, Inc., And United States Corporation Company, As Surety Status: Closed Recommended Order on Friday, March 8, 2013.

Summary: Petitioner proved debt owed by Respondent; Agricultural bond should be used to pay debt.

Case No. 13-0101

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

H.P. SOD, INC., RECOMMENDED ORDER )

)

Petitioner, )

vs. )

)

PSL LANDSCAPE SERVICES, INC., )

AND UNITED STATES CORPORATION )

COMPANY, AS SURETY, )

)

Respondents. )

)

)

Pursuant to notice to all parties, the final hearing was

conducted in this case on February 20, 2013, in Arcadia, Florida,

before Administrative Law Judge R. Bruce McKibben of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Paul Bennett Seusy, Esquire

Paul Bennett Seusy, P.A.

203 West Oak Street Arcadia, Florida 34266

For Respondent: George Kijewsky, pro se

PSL Landscape Services, Inc.

6132 Snook Court

Port St. Lucie, Florida 34983

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, H.P. Sod,

Inc., is entitled to payment from an Agricultural Bond issued to

Respondent, PLS Landscape Services, Inc., and, if so, the amount

owed to Petitioner.

PRELIMINARY STATEMENT

This case commenced with Petitioner filing an Agricultural

Products Dealer Claim Form dated November 12, 2012, with the

Department of Agriculture and Consumer Services (Department of

Agriculture or Department). The claim was for $4,531.16,

representing $4,481.16 in unpaid invoices and $50.00 for the

claim filing fee.

At the final hearing, Petitioner called four witnesses:

Sonia Pereira, Horacio Pereira, Larry Calloway, and George

Kijewski. Petitioner’s Exhibits A through I and K through Q were

admitted into evidence. Respondent testified on his own behalf

and did not offer any documentary evidence. 1/

The final hearing was digitally recorded by the undersigned.

Neither party requested or was provided a copy of the recording.

By rule, the parties had ten days from the date of final hearing

to file proposed recommended orders (PROs). Petitioner filed a

“Final Judgment” on February 21, 2013, which set forth findings

of fact, and it was accepted as Petitioner’s PRO. Respondent

submitted a one-page document in the form of a letter with

numbered paragraphs on March 1, 2013; it was accepted as

Respondent’s PRO. Each party's PRO was duly considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a licensed producer of an agricultural

product, i.e., sod. Petitioner is a duly incorporated for-profit

corporation in the State of Florida and is in good standing.

Horacio Pereira is the putative owner of the company, referring

to himself at final hearing as “the boss, the guy who tells

people what to do.”

2. Respondent is a duly incorporated Florida corporation.

Its business address is 6132 Snook Court, Port St. Lucie,

Florida. The only officer or director of the corporation is

George J. Kijewski. Respondent is a landscaping business.

3. From the period July 23, 2012, through October 16, 2012,

Respondent purchased quantities of Bahia sod from Petitioner on

numerous occasions. The dates of purchase, quantity of sod

purchased, and ticket numbers for each purchase are as follows:

July 23 – Ticket 36930 – 10 pallets

July 23 - Ticket 36983 – 16 pallets

July 30 – Ticket 37185 – 10 pallets

August 1 – Ticket 36818 – 16 pallets

August 1 – Ticket 37276 – 16 pallets

August 1 – Ticket 37283 – 16 pallets

August 6 – Ticket 36872 – 16 pallets

August 8 – Ticket 37319 – 16 pallets

August 10 – Ticket 37339 – 16 pallets

September 4 – Ticket 37727 – 16 pallets

October 15 – Ticket 38712 – 16 pallets

October 16 – Ticket 38720 – 16 pallets

4 . Petitioner issued the following invoices to Respondent

concerning the aforementioned purchases of Bahia sod:

Invoice 6615 – July 26 – Tickets 36930,

36983 $620.20

Invoice 6640 – August 2 – Tickets 36818,

37185, 37276, 37283 - $1,420.96

Invoice 6671 – August 16 – Tickets 36872, 37319, 37339 - $1,104.24

Invoice 6735 – September 6 – Ticket 37727 - $445.12

Invoice 6875 – October 18 – Tickets 38712,

38720 - $890.24

TOTAL - $4,481.11

5 . Respondent did not remit payments on any of the

aforementioned invoices.

6. Respondent contends that some of the sod which it

purchased from Petitioner was of inferior quality or was in less

quantity than ordered. Specifically, Respondent said some of the

sod was wet and fell apart when being installed. He also said

the wet sod resulted in some pallets containing 370 to 390 square

feet of sod rather than the 400 feet that is standard on a

pallet.

7. Respondent’s testimony was general in nature, not

specific to any particular shipment, and flies in the face of his

on-going purchases of sod from Petitioner. Further, there was no

credible evidence presented at final hearing that Respondent ever

complained to Petitioner about the quality or quantity of the

sod. Had he done so, Petitioner said it would have corrected the

problem. Respondent did reportedly tell one of his drivers,

Mr. Calloway, on occasion that the sod was wet or otherwise not

up to par. However, that complaint was never provided to

Petitioner so that action could be taken.

8. Respondent acquired a bond in the sum of $5,000.00

through TD Bank, N.A. (also referred to in this matter as United

States Corporation Company, as Surety). The bank was not

represented at the final hearing held in this matter. No defense

was raised by the bank concerning Petitioner’s attempt to attach

the bond.

9. Petitioner paid a fee of $50.00 to the Department of

Agriculture to bring this action.

10. Petitioner hired an attorney to represent its interest

in this matter. The attorney charged $175.00 per hour and, as of

the date of the final hearing, had billed approximately five

hours of time or $875.00 in fees. Subsequent to the final

hearing, the attorney submitted a post-hearing proposed order on

behalf of Petitioner. The attorney expended $180.00 in costs for

service of a subpoena and witness fees.

11. The total sum demanded by Petitioner in its action

against Respondent is $5,586.11.

12. Respondent’s PRO filed in this matter asserts a number

of “facts” which were not established by competent testimony at

the final hearing. Those facts were not considered in the

preparation of this Recommended Order.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

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

Statutes (2012). 2/

14. The burden of proof in an administrative proceeding is

on the party asserting the affirmative of an issue. Dep’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. Dep’t of Agric. & Consumer

Servs. , 550 So. 2d 112 (Fla. 1st DCA 1989). In the instant 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 non-receipt of payment by Petitioner.

15. Respondent’s defense, i.e., that some of the sod was

inferior and that pallets contained less than the purchased

quantity, is rejected. There is no competent or persuasive

evidence to support that contention. Absent any proof that

Respondent complained about the sod contemporaneously with its

purchase, it is impossible to now ascertain whether the sod was

inferior or less than ordered.

16. Section 604.21, Florida Statutes, 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.

17. Petitioner met its burden of proof. Respondent’s

defenses are not substantiated by persuasive evidence.

RECOMMENDATION

Based upon the findings of fact and conclusions of law set

forth above, it is hereby RECOMMENDED that a Final Order be

entered by the Department of Agriculture and Consumer Services as

follows:

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

the entry of the Final Order, the sum of $5,586.11; or

2. If Respondent fails to timely make the aforementioned

payment, the Department shall call upon TD Bank, N.A., to pay

over to the Department the full amount of Respondent’s bond; and

3. The Department shall then turn the entire proceeds of

the bond over to Petitioner.

DONE AND ENTERED this 8th day of March, 2013, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

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 8th day of March, 2013.

ENDNOTES

1/ At final hearing, Petitioner objected to George Kijewski

representing the corporation, PLS Landscape Services, Inc., on

the basis that the corporation – as a legal person under Florida

law – could represent itself pro se, but Mr. Kijewski was not the

corporation. Over objection, the undersigned allowed

Mr. Kijewski to represent the corporation as a quasi-Qualified

Representative.

2/ Unless stated specifically otherwise in this Recommended

Order, all references to Florida Statutes shall be to the 2012

codification.

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

United States Corporation Company

TD Bank, N.A.

1201 Hays Street

Tallahassee, Florida 32301-2525

Joanna E. Kijewski

PSL Landscape Services, Inc.

6132 Snook Court

Port St. Lucie, Florida 34983

Paul Bennett Seusy, Esquire

Paul Bennett Seusy, P.A.

203 West Oak Street

Arcadia, Florida 34266

Robert A. Goldman, Esquire

Fox, Wackeen, Dungey, Beard, Bush,

Goldman, Kilbride, Waters and McCluskey, LLP

3473 Southeast Willoughby Boulevard

Stuart, Florida 34994

Honorable Adam Putnam, Commissioner

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399-0810

Lorena Holley, General Counsel

Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399-0800

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.