14-002519 Other Side Sod Company, Llc vs. American Sod Services, Inc., And Auto-Owners Insurance Company, As Surety Status: Closed Recommended Order on Wednesday, August 20, 2014.

Summary: Petitioner entitled to payment under chapter 604, FS, for the sale of sod.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OTHER SIDE SOD COMPANY, LLC,

Petitioner,

vs. Case No. 14 - 2519

AMERICAN SOD SERVICES, INC., AND

AUTO - OWNERS INSURANCE COMPANY,

AS SURETY,

Respondent s .

_______________________________/

RECOMMENDED ORDER

On July 28, 2014, Thomas P. Crapps, a duly - designated

Administrative Law Judge of the Division of Administrative

Hearings (DOAH) , conducted a final hearing in this case by video

teleconference at sites in Tallahassee and Tampa, Flor ida.

APPEARANCES

For Petitioner Other Side Sod Company, LLC :

Joel Deriso, pro se

3356 Southwest County Road 769

Arcadia, Florida 34269 - 7112

For Respondent American Sod Services, Inc:

No Appearance

For Respondent Auto - Owners Insurance Company:

No Appe arance

STATEMENT OF THE ISSUE

Whether the Petitioner established that it is entitled to

compensation pursuant to sections 604.15 through 604.34, Florida

Statutes (2013) . 1/

PRELIMINARY STATEMENT

On May 28, 2014, the Florida Department of Agriculture and

Co nsumer Services (Department) transmitted to DOAH a claim filed

by Petitioner, Other Side Sod Company, LLC (Petitioner) , against

the Respondent, American Sod Services, Inc. (American Sod) ,

pursuant to chapter 604 . The Petitioner ' s claim was set for

final h earing on July 28, 2014 , and was conducted as scheduled .

At the final hearing, the Petitioner presented the testimony

of Joel Deriso and entered into evidence C omposite Exhibits 1

and 2. The Respondent s failed to appear at the final hearing.

N o transcript was filed. The Petitioner timely filed a

proposed recommended order. American Sod did not file a proposed

recommended order.

FINDING S OF FACT

1. The Petitioner grows and sells grass sod in the State of

Florida , thus , meet ing the statutory definition of a " producer of

agricultural products. " 2/

2. Respondent is a licensed " dealer in agricultural

products , " as defined by chapter 604, Florida Statutes. 3/

3. Sometime in November 2013, the Petitioner and American

Sod entered into a verbal contract , whe re the Petitioner would

furnish bahia grass sod for Respondent.

4. The initial invoices for deliveries to American Sod on

November 7, 8, 11 and 14, 2013 , show that the Petitioner charged

American Sod $0.055 for each sod square delivered. However, the

price increased to $0.065 for each sod square on November 15,

17, 21, December 10 , and 17, 2013, based on the agreement of the

parties that the price would increase if American Sod failed to

timely pay the invoices. Here, it is not disputed that American

Sod failed to timely pay the Petitioner for its sod.

5. The invoices and testimony show that the Petitioner

charged American Sod for sod , as well as for deposits on the

wooden pallets used for delivery of the sod.

6. The total amount owed by Americ an Sod is $4,378.92. Out

of this total amount owed, the facts show that $3 , 016.92 is

attributed to American Sod ' s failure to pay for the sod and

$1 , 362.00 is for the pallets.

CONCLUSIONS OF LAW

7. DOAH has jurisdiction over the parties and subject

matt er of this case. §§ 120.569, 120.57(1), and 604.21(6),

Fla. Stat.

8. The Department is the state agency responsible for

licensing dealers in agricultural products and investigating and

taking action on complaint s against dealers. §§ 604.15 through

604. 3 4, Fla. Stat.

9. The bahia grass sod produced by the Petitioner and sold

to American Sod meets the definition of an " agricultural

product. " 4/

10. American Sod is a licensed " dealer in agricultural

products " (section 604 .15) and is required to be license d by the

Department pursuant to section 604.17 . American Sod had to

provide the Department evidence of a surety bond or certificate

of deposit in accordance with section 604.20 and Florida

Administrative Code Rule s 5H - 1.001 and 5H - 1.004 . American Sod is

properly and sufficiently bonded by Respondent, Auto - Owners

Insurance Company , as s urety, for the sum of $50,000.00.

11. Pallets charged to American Sod by Petitioner do not

come within the definition of " agricultural products " as defined

in section 604.15 ( 1 ). Consequently, the amount charged for

pallets should be deducted from the amount owed by American Sod

to Petitioner .

12. American Sod owes the Petitioner the sum of $3 , 016.92

which is calculated by subtracting the amount owed for the

pallets from th e total bill, which contains costs for sod and

pallets.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent , American Sod Services,

Inc., pay the Petitioner , Other Side Sod Company, LLC, the su m of

$3 , 016.92.

It is further RECOMMENDED that if American Sod fails to

timely pay the Petitioner, as ordered, that the Respondent ,

Auto - Owners Insurance Company , as surety, be ordered to pay the

Department of Agriculture and Consumer Services as require d by

section 604.21, Florida Statutes, and the Department reimburse

the Petitioner as set out in section 604.21, Florida Statutes.

DONE AND ENTERED this 20th day of August , 2014 , in

Tallahassee, Leon County, Florida.

S

TH OMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

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 A dministrative Hearings

this 20th day of August , 2014 .

ENDNOTE S

1/ All references to Florida Statutes shall be for the 2013

version, unless otherwise designated as a different year.

2/ Section 604.15(9) defines " producer " as " any producer of

agricultu ral products produced in the state. " The term

" agricultural products, " as defined by section 604.15(1),

includes sod.

3/ Section 604.15(2) defines a " dealer in agricultural products , "

in pertinent part, as " a ny person, partnership, corporation, or

other business entity . . . engaged with in this state in the

business of purchasing, receiving, or soliciting agricultural

products from the producer . . . for resale or processing for

sale . "

4/ Section 604.15 provides:

Dealers in agricultural products;

defi nitions. -- For the purpose of ss. 604.15 -

604.34, the following words and terms, when

used, shall be construed to mean:

(1) " Agricultural products " means the

natural products of the farm, nursery, grove,

orchard, vineyard, garden, and apiary (raw or

manufa ctured); sod; horticulture; hay;

livestock; milk and milk products; poultry

and poultry products; the fruit of the saw

palmetto (meaning the fruit of the Serenoa

repens); limes (meaning the fruit Citrus

aurantifolia, variety Persian, Tahiti,

Bearss, or Flo rida Key limes); and any other

nonexempt agricultural products produced in

the state, except tobacco, sugarcane,

tropical foliage, timber and timber

byproducts, forest products as defined in

s. 591.17, and citrus other than limes .

COPIES FURNISHED:

Ho norable Adam Putnam

Commission er of Agriculture

Department of Agriculture and

Consumer Services

The Capital, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Lorena Holley, General Counsel

Department of Agriculture and

Consumer Services

Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

Man d y L. Medders, Bureau Chief

Bureau of Agricultural Dealer ' s Licenses

Division of Marketing and Development

Department of Agriculture and

Consumer Services

407 South Calhoun Street , Mail Stop 38

T allahassee, Florida 32399 - 0800

James J. Lawson

American Sod Services, Inc.

2425 Lackland Avenue

Spring Hill, Florida 34608 - 7319

Pamela T. McLean

Auto - Owners Insurance Company

Post Office Box 3200

Ocala, Florida 34478 - 3200

Joel Deriso

Other Side Sod C ompany, LLC

3356 Southwest County Road 769

Arcadia, Florida 34269 - 7112

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 Recomme nded Order should be filed with the agency that

will issue the Final Order in this case.