15-002531 Southeastern Trees, Llc vs. Grandview Landscaping Services, Inc.; Guignard Company; And Sure Tec Insurance Company, As Surety Status: Closed Recommended Order on Thursday, October 8, 2015.

Summary: Respondent is indebted to Petitioner in the amount of $5,774.00 for the purchase of live oak trees. The amount includes Petitioner's filing fee for its complaint filed with the Department.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUT H EASTERN TREES , LLC,

Petitioner,

vs. Case No. 15 - 2531

GRANDVIEW LANDSCAPING SER V ICES ,

INC.; GUIGNARD COMPANY; AND SURE

TEC INSURANCE COMPANY, AS

SURETY,

Respondent s .

_______________________________/

RECOMMENDED ORDER

A duly - noticed final hearing was held in this matter on

September 15, 2015 , via video teleconference in Tallahassee and

Gainesville , Florida, before Suzanne Van Wyk, a designated

Administrative Law Judge of the Division of Administrative

Hearings (Division) .

APPEARANCES

For Petitioner: Keith Lerner, pro se

Southeastern Trees, LLC

Suite 4

4881 Northwest 8th Avenue

Gainesville , Florida 32605

For Respondent , Grandview Landscaping Services, Inc.:

No appearance

F or Respondent, Guignard Company 1 / :

No appearance

For Respondent, Sure Tec Insurance Company:

No appearance

STATEMENT OF THE ISSUE

Whether Grandview Landscaping Services, Inc. , is liable to

Petiti oner for the purchase of landscaping trees; and , if so, in

what amount .

PRELIMINARY STATEMENT

On March 31 , 2015, Petitioner filed a Complaint against

Grandview Landscaping Services, Inc. (Grandview) ; and Sure Tec

Insurance Company with the Florida Department of Agriculture and

Consumer Services (Department) , se eking payment for 27 Live Oak

trees. The Department provided Notice of the Complaint to

Grandview and Sure Tec Insurance Company . Respondent Grandview

answered the Complaint on April 27, 2015 , and complained that

Grandview had to replace seven of the 27 trees due to health

issues . O n May 5 , 2014, the Department referred the matter to

the Division to schedule an evidentiary hearing. Neither

Guignard Company nor Sure Tec Insurance Company respond ed nor

did either of those parties appear in these proceedin gs.

The matter was initially scheduled for hearing on June 30 ,

201 5 , by video teleconference in Gainesville and Tallahassee,

Florida. The final hearing was continued at the request of

Respondent Grandview and rescheduled for September 15 , 201 5 .

The fina l hearing commenced as re scheduled. Petitioner

offered the testimony of Keith Lerner and David Lerner, its

President and Vice President, respectively. PetitionerÓs

exhibits 1 through 3 were admitted in evidence.

None of the Respondent s appeared at the fi nal hearing.

Petitioner did not order a transcript o f the proceedings.

Petitioner timely filed a Proposed Recommended Order on

September 16, 2015, which has been cons idered in the preparation

of this Recommended Order.

FINDING S OF FACT

1 . Petitioner, So utheastern Trees, LLC ( Petitioner or

Southeastern Trees ) , is a Florida L imited Liability Corporation

located in Gainesville , Florida, engaged in the business of

commercial tree farming . Keith Lerner is the President of

Sout h eastern , and David Lerner is th e Vice President .

2 . Respondent, Grandview Landscaping Services, Inc.

(Respondent or Grandview ) , is a Florida corporation

headquartered in Ocala, Florida, engaged in commercial

landscaping . Grandview is licensed by the Department as a

dealer in nursery p roducts, flowers, and sod.

3 . In August 2015, John Sapp, GrandviewÓs owner, visited

PetitionerÓs tree farm and selected 27 live oak trees to

pur chase .

4 . On December 11, 2014, Mr. Sapp returned to Southeastern

Trees and took possession of the 27 live oa k trees. Mr. Sapp

used his own equipment to haul the trees.

5 . Petitioner sent an in voice to Respondent on

December 11, 2014, in the amount of $5,724.00 for the 27 live

oak trees. The invoice term was Ðnet 30 , Ñ allowing 30 days for

Respondent to pay in full.

6 . After 30 days had elapsed without payment, David Lerner

contacted Mr. Sapp to request payment. Mr. Lerner also

requested the location of the trees in order to place a lien

thereon. According to Mr. Lerner, Mr. Sapp refused to divulge

the locat ion of the trees.

7 . After 60 days had elapsed without payment, Keith Lerner

contacted Mr. Sapp via telephone. According to Keith Lerner, he

spoke with Mr. Sapp on March 1, 2015, who informed him the trees

were beautiful and Mr. Sapp would Ðget him a che ck.Ñ

8 . Keith Lerner attempted to reach Mr. Sapp via telephone

again on March 10, 2015, and left messages with GrandviewÓs

office and on Mr . SappÓs personal mobile phone. Mr. Lerner did

not receive a return call.

9 . On March 25, 2015, Petitioner sent Respondent, via

certified mail, a letter requesting payment of $5,724.00 for the

27 live oak trees and Ðany interest available to us beyond the

30 days of credit that were extended to you.Ñ The letter was

delivered to both GrandviewÓs business address an d Mr. SappÓs

home address.

10 . The certified mail receipts were returned to

Southeaster n Trees, signed and dated March 26, 2015.

11 . Petitioner filed a complaint with the Department on

March 31, 2015, against Southeastern Trees . Petit i oner paid a

fi ling fee of $50.00

12 . As of the date of the hearing, Southeastern Trees had not

responded to PetitionerÓs request for payment.

CONCLUSIONS OF LAW

13 . The Division has jurisdiction over the parties and the

subject matter of this proceeding. §§ 120.569 & 120.57(1),

604.21(6), Fla. Stat. (2015 ).

14 . The Department is the state agency responsible for

licensing dealers in agricultural products , and investigating

and taking action on complaints against such dealers. §§ 604.15

through 604.34, Fla. Stat. (20 14). 2 /

15 . The definition of Ðagricultural productsÑ includes the

Ðnatural products of the . . . farm [and] nursery . . . produced

in the state[.]Ñ £ 604.15(1), Fla. Stat. The trees grown by

Petitioner are Ðagricultural productsÑ within the meaning of

s ection 604.15(1).

16 . The definition of a Ðdealer in agricultural productsÑ

includes any Ðcorporation . . . engaged within this state in the

business of purchasing, receiving, or soliciting agricultural

products from the producer . . . for resale or proce ssing for

sale[.]Ñ £ 604.15(1), Fla. Stat. Grandview is a dealer in

agricultural products within the meaning of section 604.15(1).

17 . Any business claiming to be damaged by any breach of

the conditions of an agreement made with a dealer in

agricultural products , may file a complaint with the Department

against the dealer and against the surety company. See

§ 604.21(1)(a), Fla. Stat.

18 . As the Petitioner, Southeastern bears the burden of

proving the allegations of its complaint by a preponderance of

the evidence. See DepÓt of Banking & Fin. , Div. of Sec. & Inv.

Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996)

(ÐThe general rule is that a party asserting the affirmative of

an issue has the burden of presenting evidence as to that

issueÑ); Fla. DepÓt of Transp. v. J.W.C. Co. , 396 So. 2d 778,

788 (Fla. 1st DCA 1981); Vero Beach Land Co., LLC v. IMG Citrus,

Inc. , Case No. 08 - 5435 (Fla. DOAH Mar. 4, 2009; Fla. DACS

July 20, 2009), affÓd IMG Citrus, Inc. v. Westc hester Fire Ins.

Co. , 46 So. 3d 1014 (Fla. 4th DCA 2010).

19 . Petitioner has satisfied its burden. As set forth in

the Findings of Fact, Respondent Grandview owes Petitioner

$5,724.00 for 27 live oak trees.

20 . Petitioner additionally seeks recovery of the filing

fee paid to the Depar tment for the compla int filed against

Respondents on March 31, 2015. Petitioner paid a $50 filing

fee, which is specifically recoverable against Respondent. See

£ 604.21(1)(a)(ÐIn the event the complainant is successful in

proving the claim, the dealer i n agricultural products shall

reimburse the com plainant for the $50 filing fee as part of the

settlement of the claim.Ñ)

21 . Petitioner further seeks interest on the debt owed by

Resp ondent from the date the 30 day payment term expired.

Nothing in the gov erning statute mentions costs, generally, or

interest , particularly. Petitioner has cited no other authority

for the undersigned to recommend payment of interest accrued on

the debt. Section 55.03(1) , Florida Statutes, Ðprovides only

that a Òjudgment or decreeÓ shall bear interest. Such does not

include administrative orders.Ñ Bank of Cent. Fl a . v. DepÓt of

Banking & Fin. , 470 So. 2d 742 , 746 (Fla. 1st DCA 1985).

ÐAlthough administrative orders entered in adjudicatory

proceedings are generally regarded as quasi - judicial in nature .

. . administrative orders are generally regarded as not having

the force or effect of a final judgment or decree of a court.Ñ

Id. (citations omitted).

22 . Inasmuch as the governing statute does not address an

award of costs , the undersigned has no authority to recommend

reimbursement of PetitionerÓs cost incurred in mailing demand

letters to Mr. Sapp via certified mail. 3 /

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that th e Department of Agriculture and

Consumer Services enter a final order approving the claim of

Southeastern Trees, LLC , against Grandview Landscaping Services,

Inc. , in the amount of $ 5,774.00 .

DONE AND ENTERED this 8th day of October , 2015 , in

Tallahassee, Leon County, Florida.

S

Suzanne Van Wyk

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 Administrative Hearings

this 8th day of October , 201 5 .

ENDNOTE S

1 / The record is unclear as to GuignardÓs party status in this

matter. Sure Tec Insurance Company, rather than Guignard

Company, was identified by the Department of Agriculture and

Consumer Services (Department) as the applicable bond holder,

served with a copy of PetitionerÓs claim, and copied on the

DepartmentÓs letter forwarding this case to the Division.

2 / Except as otherwise noted herein, references to the Florida

Statutes are to the 2014 version in effect when PetitionerÓs

claim was filed.

3 / Assuming PetitionerÓs costs were recoverable in this action,

costs Petitioner incurred in mailing demand letters via

certified mail do not appear to qualify as litig ation costs ,

subject to taxation under the Statewide Uniform Guidelines for

Taxation of Costs in Civil Actions.

COPIES FURNISHED :

Tina Robinson

Division of Consumer Services

Bureau of Mediation and Enforcement

Department of Agriculture and Consumer Serv ices

2005 Apalachee Parkway

Tallahassee, Florida 32399 - 0800

Sure Tec Insurance Company

Suite 110

1330 Post Oak Boulevard

Houston, Texas 77056

Guignard Company

1904 Boothe Circle

Longwood, Florida 32750

Keith Lerner

Southern Trees, Inc.

Suite 4

4881 N orthwest 8 th Avenue

Gainesville, Florida 32605

(e S erved)

John L. Sapp

Grandview Landscaping, Inc.

576 Southwest 45 th Street

Ocala, Florida 34471

Honorable Adam Putnam

Commissioner of Agriculture

Department of Agriculture and Consumer Services

The Capit ol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Lorena Holly, General Counsel

Department of Agriculture and Consumer Services

407 South Calhoun Street

Suite 520

Tallahassee, Florida 32399 - 0800

(eServed)

Paul J. Pagano , Bureau Chief

Bureau of Mediati on and Enforcement

Department of Agriculture and Consumer Services

Rhodes Building, R - 3

2005 Apalachee Parkway

Tallahassee, Florida 32399 - 6500

(eServed)

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.