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.
Recommended Order on Friday, March 8, 2013.
1Case No. 13-0101
4STATE OF FLORIDA
7DIVISION OF ADMINISTRATIVE HEARINGS
11H.P. SOD, INC., RECOMMENDED ORDER )
17)
18Petitioner, )
20vs. )
22)
23PSL LANDSCAPE SERVICES, INC., )
28AND UNITED STATES CORPORATION )
33COMPANY, AS SURETY, )
37)
38Respondents. )
40)
41)
42Pursuant to notice to all parties, the final hearing was
52conducted in this case on February 20, 2013, in Arcadia, Florida,
63before Administrative Law Judge R. Bruce McKibben of the Division
73of Administrative Hearings.
76APPEARANCES
77For Petitioner: Paul Bennett Seusy, Esquire
83Paul Bennett Seusy, P.A.
87203 West Oak Street Arcadia, Florida 34266
94For Respondent: George Kijewsky, pro se
100PSL Landscape Services, Inc.
1046132 Snook Court
107Port St. Lucie, Florida 34983
112STATEMENT OF THE ISSUE
116The issue in this case is whether Petitioner, H.P. Sod,
126Inc., is entitled to payment from an Agricultural Bond issued to
137Respondent, PLS Landscape Services, Inc., and, if so, the amount
147owed to Petitioner.
150PRELIMINARY STATEMENT
152This case commenced with Petitioner filing an Agricultural
160Products Dealer Claim Form dated November 12, 2012, with the
170Department of Agriculture and Consumer Services (Department of
178Agriculture or Department). The claim was for $4,531.16,
187representing $4,481.16 in unpaid invoices and $50.00 for the
197claim filing fee.
200At the final hearing, Petitioner called four witnesses:
208Sonia Pereira, Horacio Pereira, Larry Calloway, and George
216Kijewski. Petitioners Exhibits A through I and K through Q were
227admitted into evidence. Respondent testified on his own behalf
236and did not offer any documentary evidence. 1/
244The final hearing was digitally recorded by the undersigned.
253Neither party requested or was provided a copy of the recording.
264By rule, the parties had ten days from the date of final hearing
277to file proposed recommended orders (PROs). Petitioner filed a
286Final Judgment on February 21, 2013, which set forth findings
296of fact, and it was accepted as Petitioners PRO. Respondent
306submitted a one-page document in the form of a letter with
317numbered paragraphs on March 1, 2013; it was accepted as
327Respondents PRO. Each party's PRO was duly considered in the
337preparation of this Recommended Order.
342FINDINGS OF FACT
3451. Petitioner is a licensed producer of an agricultural
354product, i.e., sod. Petitioner is a duly incorporated for-profit
363corporation in the State of Florida and is in good standing.
374Horacio Pereira is the putative owner of the company, referring
384to himself at final hearing as the boss, the guy who tells
396people what to do.
4002. Respondent is a duly incorporated Florida corporation.
408Its business address is 6132 Snook Court, Port St. Lucie,
418Florida. The only officer or director of the corporation is
428George J. Kijewski. Respondent is a landscaping business.
4363. From the period July 23, 2012, through October 16, 2012,
447Respondent purchased quantities of Bahia sod from Petitioner on
456numerous occasions. The dates of purchase, quantity of sod
465purchased, and ticket numbers for each purchase are as follows:
475July 23 Ticket 36930 10 pallets
483July 23 - Ticket 36983 16 pallets
491July 30 Ticket 37185 10 pallets
499August 1 Ticket 36818 16 pallets
507August 1 Ticket 37276 16 pallets
515August 1 Ticket 37283 16 pallets
523August 6 Ticket 36872 16 pallets
531August 8 Ticket 37319 16 pallets
539August 10 Ticket 37339 16 pallets
547September 4 Ticket 37727 16 pallets
555October 15 Ticket 38712 16 pallets
563October 16 Ticket 38720 16 pallets
5714 . Petitioner issued the following invoices to Respondent
580concerning the aforementioned purchases of Bahia sod:
587Invoice 6615 July 26 Tickets 36930,
59536983 $620.20
597Invoice 6640 August 2 Tickets 36818,
60537185, 37276, 37283 - $1,420.96
611Invoice 6671 August 16 Tickets 36872, 37319, 37339 - $1,104.24
624Invoice 6735 September 6 Ticket 37727 - $445.12
634Invoice 6875 October 18 Tickets 38712,
64238720 - $890.24
645TOTAL - $4,481.11
6495 . Respondent did not remit payments on any of the
660aforementioned invoices.
6626. Respondent contends that some of the sod which it
672purchased from Petitioner was of inferior quality or was in less
683quantity than ordered. Specifically, Respondent said some of the
692sod was wet and fell apart when being installed. He also said
704the wet sod resulted in some pallets containing 370 to 390 square
716feet of sod rather than the 400 feet that is standard on a
729pallet.
7307. Respondents testimony was general in nature, not
738specific to any particular shipment, and flies in the face of his
750on-going purchases of sod from Petitioner. Further, there was no
760credible evidence presented at final hearing that Respondent ever
769complained to Petitioner about the quality or quantity of the
779sod. Had he done so, Petitioner said it would have corrected the
791problem. Respondent did reportedly tell one of his drivers,
800Mr. Calloway, on occasion that the sod was wet or otherwise not
812up to par. However, that complaint was never provided to
822Petitioner so that action could be taken.
8298. Respondent acquired a bond in the sum of $5,000.00
840through TD Bank, N.A. (also referred to in this matter as United
852States Corporation Company, as Surety). The bank was not
861represented at the final hearing held in this matter. No defense
872was raised by the bank concerning Petitioners attempt to attach
882the bond.
8849. Petitioner paid a fee of $50.00 to the Department of
895Agriculture to bring this action.
90010. Petitioner hired an attorney to represent its interest
909in this matter. The attorney charged $175.00 per hour and, as of
921the date of the final hearing, had billed approximately five
931hours of time or $875.00 in fees. Subsequent to the final
942hearing, the attorney submitted a post-hearing proposed order on
951behalf of Petitioner. The attorney expended $180.00 in costs for
961service of a subpoena and witness fees.
96811. The total sum demanded by Petitioner in its action
978against Respondent is $5,586.11.
98312. Respondents PRO filed in this matter asserts a number
993of facts which were not established by competent testimony at
1003the final hearing. Those facts were not considered in the
1013preparation of this Recommended Order.
1018CONCLUSIONS OF LAW
102113. The Division of Administrative Hearings has
1028jurisdiction over the parties to and the subject matter of this
1039proceeding pursuant to Sections 120.569 and 120.57(1), Florida
1047Statutes (2012). 2/
105014. The burden of proof in an administrative proceeding is
1060on the party asserting the affirmative of an issue. Dept of
1071Banking & Fin., Div. of Sec. & Inv. Prot. v. Osbourne, Stern &
1084Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d
1097292 (Fla. 1987); Evans Packing Co. v. Dept of Agric. & Consumer
1109Servs. , 550 So. 2d 112 (Fla. 1st DCA 1989). In the instant case,
1122Petitioner must prove by a preponderance of the evidence that it
1133provided goods or services to Respondent and that Respondent
1142failed to pay for such goods or services. Based upon the
1153testimony at final hearing, offered in full candor by each
1163witness, it is clear there is no dispute as to receipt of goods
1176by Respondent and non-receipt of payment by Petitioner.
118415. Respondents defense, i.e., that some of the sod was
1194inferior and that pallets contained less than the purchased
1203quantity, is rejected. There is no competent or persuasive
1212evidence to support that contention. Absent any proof that
1221Respondent complained about the sod contemporaneously with its
1229purchase, it is impossible to now ascertain whether the sod was
1240inferior or less than ordered.
124516. Section 604.21, Florida Statutes, sets forth the
1253process for attaching a bond when a bonded party fails to make
1265payments for purchased goods or services. Petitioner has
1273complied with the requirements of that statutory section.
128117. Petitioner met its burden of proof. Respondents
1289defenses are not substantiated by persuasive evidence.
1296RECOMMENDATION
1297Based upon the findings of fact and conclusions of law set
1308forth above, it is hereby RECOMMENDED that a Final Order be
1319entered by the Department of Agriculture and Consumer Services as
1329follows:
13301. Respondent shall pay to Petitioner, within 15 days of
1340the entry of the Final Order, the sum of $5,586.11; or
13522. If Respondent fails to timely make the aforementioned
1361payment, the Department shall call upon TD Bank, N.A., to pay
1372over to the Department the full amount of Respondents bond; and
13833. The Department shall then turn the entire proceeds of
1393the bond over to Petitioner.
1398DONE AND ENTERED this 8th day of March, 2013, in
1408Tallahassee, Leon County, Florida.
1412R. BRUCE MCKIBBEN
1415Administrative Law Judge
1418Division of Administrative Hearings
1422The DeSoto Building
14251230 Apalachee Parkway
1428Tallahassee, Florida 32399-3060
1431(850) 488-9675
1433Fax Filing (850) 921-6847
1437www.doah.state.fl.us
1438Filed with the Clerk of the
1444Division of Administrative Hearings
1448this 8th day of March, 2013.
1454ENDNOTES
14551/ At final hearing, Petitioner objected to George Kijewski
1464representing the corporation, PLS Landscape Services, Inc., on
1472the basis that the corporation as a legal person under Florida
1484law could represent itself pro se, but Mr. Kijewski was not the
1497corporation. Over objection, the undersigned allowed
1503Mr. Kijewski to represent the corporation as a quasi-Qualified
1512Representative.
15132/ Unless stated specifically otherwise in this Recommended
1521Order, all references to Florida Statutes shall be to the 2012
1532codification.
1533COPIES FURNISHED:
1535Christopher E. Green, Esquire
1539Department of Agriculture and
1543Consumer Services
1545Office of Citrus License and Bond
1551Mayo Building, M-38
1554Tallahassee, Florida 32399-0800
1557United States Corporation Company
1561TD Bank, N.A.
15641201 Hays Street
1567Tallahassee, Florida 32301-2525
1570Joanna E. Kijewski
1573PSL Landscape Services, Inc.
15776132 Snook Court
1580Port St. Lucie, Florida 34983
1585Paul Bennett Seusy, Esquire
1589Paul Bennett Seusy, P.A.
1593203 West Oak Street
1597Arcadia, Florida 34266
1600Robert A. Goldman, Esquire
1604Fox, Wackeen, Dungey, Beard, Bush,
1609Goldman, Kilbride, Waters and McCluskey, LLP
16153473 Southeast Willoughby Boulevard
1619Stuart, Florida 34994
1622Honorable Adam Putnam, Commissioner
1626Department of Agriculture and
1630Consumer Services
1632The Capitol, Plaza Level 10
1637Tallahassee, Florida 32399-0810
1640Lorena Holley, General Counsel
1644Department of Agriculture and
1648Consumer Services
1650407 South Calhoun Street, Suite 520
1656Tallahassee, Florida 32399-0800
1659NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1665All parties have the right to submit written exceptions within
167515 days from the date of this Recommended Order. Any exceptions
1686to this Recommended Order should be filed with the agency that
1697will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 03/08/2013
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 03/01/2013
- Proceedings: Letter to Judge McKibben from G. Kijewski regarding responding to the allegations filed.
- Date: 02/20/2013
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 01/28/2013
- Proceedings: Agency`s court reporter confirmation letter filed with the Judge.
- PDF:
- Date: 01/22/2013
- Proceedings: Notice of Hearing (hearing set for February 20, 2013; 9:00 a.m.; Arcadia, FL).
Case Information
- Judge:
- R. BRUCE MCKIBBEN
- Date Filed:
- 01/08/2013
- Date Assignment:
- 01/10/2013
- Last Docket Entry:
- 07/03/2013
- Location:
- Arcadia, Florida
- District:
- Middle
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
United States Corporation Company
Address of Record -
Robert A. Goldman, Esquire
Address of Record -
Christopher E. Green, Esquire
Address of Record -
Joanna E. Kijewski
Address of Record -
Paul Bennett Seusy, Esquire
Address of Record