16-000278 Hibernia Enterprises, Llc, D/B/A Hibernia Nursery vs. Turner Tree Farm, Inc., D/B/A Turner Tree And Landscape, And Great American Insurance Company, As Surety Status: Closed Recommended Order on Friday, December 2, 2016.

Summary: Petitioner is entitled to collect against agricultural bond under either original claim or amended claim despite Respondent's bankruptcy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HIBERNIA ENTERPRISES, LLC,

d/b/a HIBERNIA NURSERY,

Petitioner,

vs. Case No. 16 - 0278

TURNER TREE FARM, INC., d/b/a

TURNER TREE AND LANDSCAPE, AND

GREAT AMERICAN INSURANCE

COMPANY, AS SURETY,

Respondents.

_______________________________/

R ECOMMENDED ORDER

An administrative hearing was conducted in this case on

June 23 , 2016, in Dade City , Florida, before James H.

Peterson III, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: David Counihan , pro se 1/

1176 C 478A

Webster, Florida 33597

Shiobhan Olivero, Esquire

3900 North Boulevard

Tampa, Florida 33603

For Respondent Turner Tree Farm and Landscape :

No appear ance . 2/

For Respondent Great American Insurance Company:

No appearance.

STATEMENT OF THE ISSUE

Whether Len - Tran, Inc., d/b/a Turner Tree and Landscape

(Respondent or Len - Tran , Inc. ) , or its surety company, Great

American Insurance Company, is liable to Hibernia Enterprises,

LLC, d/b/a Hibernia Nursery ( Petitioner or Hibernia) , for

$16,139.33 in agricultural products delivered to Respondent ,

plus the $50.00 filing fee for this action .

PRELIMINARY STATEMENT

On November 13, 2015 , Petitioner filed a claim

(Petitioner's Claim) , together with a $50.00 filing fee, wi th

the Florida Department of Agriculture and Consumer Services ( the

Department) for alleged unpaid deliveries of agricultural

products to "Turner Tree and Landscape." PetitionerÓs Claim was

submitted pursuant to section 604.21, Florida Statutes, 3 / on an

Agricultural Products Dealer Claim F orm with attached invoices

dated from July 20, 2015 , through August 21, 2015, totaling

$16,139.33.

On December 9, 2015, the Department provided a " Notice of

Claim Filing " (Notice of Claim) and a copy of Petitioner's Claim

with attached invoices to "Turner Tree Farm, Inc. d/b/a Turner

Tree and Landscape, Attn: Mr. Peter Mackey, Esq., Registered

Agent, 1402 3rd Drive West, Bradenton, FL 34205" and to " Great

American Insurance Company , c/ o Bond Claim Department,

301 E. 4th Street, Cincinnati, Ohio 45202." The Notice of Claim

explained that "[ i] t is the Department's responsibility to

process this claim in accordance with the Florida Agricultural

License and Bond Law, Sections 604 .15 - 604.34, Florida

Statutes. " The Notice of Claim included an attached "Answer of

Respondent form (FDACS - 06314)" for use in preparing a response

to Petitioner's Claim.

On January 4, 2016, Len - Tran, Inc. filed an answer to

Petitioner's Claim on the Department's Answer of Respondent

form . The handwritten portion of the form identified Respondent

as "Len tran inc d/b/a Turner tree Farm, " and stated:

They filed there [sic] claim on the wrong

bond. They filed on Turner tree farm. If

you look at the cl a im it should be filed

under Len tran inc dba Turner tree &

Landscape.

The pre - printed paragraph 13 of the Answer of Respondent

form states, in pertinent part, "BY COMPLETING THIS FORM I

REQUEST A HEARING." The form was signed by Darrell Turner as

"CEO" of "Len tran inc d/b/a Turner Tree Farm." Great American

Insurance Comp any did not respond to Petitioner's Claim and did

not appear or file anything in these proceedings.

O n January 19, 2016, t he Department referred the matter to

the Division of Administrative Hearings (DOAH) to conduct the

requested hearing. Thereafter, t his case was initially

scheduled for a final hearing to be held on March 29, 2016 .

On February 19, 2016, Petitioner filed with DOAH a

C orrected Agricultural Products Dealer Claim Form naming " Len -

Tran, Inc. d/b/a Turner Tree and Landscape " as the legal name of

Respondent (PetitionerÓs Corrected Claim) . Thereafter, on

March 8, 2016, Respondent filed a Motion to Dismiss and a Motion

to Continue Final Hearing asserting that Petitioner had

initially filed against the wrong entity and bond . Th e Motion

to Dismiss was denied, without prejudice, and the Motion to

Continue was granted.

The final hearing was subsequently rescheduled and heard on

June 23, 2016. At the final hearing, Petitioner's president and

owner, David Counihan, testified and offered five exhibits

received into evidence as Petitioner's Exhibits P - 1 through P - 5.

No one appeared at the hearing for Respondent or the Great

American Insurance Company . However, when contacted on the day

of the hearing, RespondentÓs counsel Ós office informed the

undersigned that Respondent had filed bankruptcy.

Following Mr. CounihanÓs pro se presentation on behalf of

Petitioner, at the close of the final hearing , the undersigned

requested that Petitioner file in this case, by July 15, 2016,

additional information regarding the filing of PetitionerÓs Claim

wi th the Department , whether PetitionerÓs Corrected Claim was

filed with the Department of Agriculture , and any written notice

of RespondentÓs bankruptcy. The undersigned also recommended, on

the record, that any post - hearing submittals should address the

following : 1 ) w hether PetitionerÓs Corrected Claim was filed

with the Department , as well as with DOAH; 2) w hether the

undersigned has authority to allow an amendment to PetitionerÓs

Claim as set forth in PetitionerÓs Corrected Claim; 3) w hether

PetitionerÓs Corrected Claim was timely; and 4) w hether

RespondentÓs bankruptcy has any effect on these proceedings.

The proceedings were recorded. At the hearing , with the

understanding that Petitioner would be ordering a transcript of

the proceedings, the parties were given 45 days from the filing

of the transcript within which to submit proposed recommended

orders. Subsequently, Petitioner obtained counsel , Shiobhan

Olivero, Esquire , who filed a Notice of A ppearance on July 7,

2016 .

Also o n July 7, 2016, PetitionerÓs counsel fil ed

PetitionerÓs Memorandum to the ALJ Regarding Hearing Held on

June 23, 2016 (PetitionerÓs Memorandum). PetitionerÓs Memorandum

addressed the four issues the undersigned identified at the close

of the final hearing and attached correspondence from the

Department to the undersigned dated July 7, 2016, regarding

PetitionerÓs Corrected Claim , as well as e - mails between

PetitionerÓs co unsel and the Department dated July 6, 2016,

related to PetitionerÓs Corrected Claim. PetitionerÓs Memorandum

also attached copies of Florida Department of State corporate

documents on Len - Tran, Inc. , and Turner Tree Farm, Inc. , as well

as Fictitious Name Detail for Turner Tree and Landscape. In

addition, PetitionerÓs Memorandum attached a ÐNotice of

Chapter 11 Bankruptcy CaseÑ (Bankruptcy Notice) indicating that

Respondent filed for Chapter 11 b ankruptcy on May 13, 2016, in

th e United States Bankruptcy Court for the Middle District of

Florida.

On July 11, 2016, the letter dated July 7, 2016 , from the

Department to the undersigned , which was attached to PetitionerÓs

Memorandum , was filed separately with DOAH. On July 14, 2016, a

letter from the Department , purporting to correct a cle rical

error in the July 7, 2016, letter was filed with DOAH.

On August 11, 2016, RespondentÓs counsel, Mr. Mackey,

Esquire, filed a Motion to Withdraw as Counsel of Record. On

August 17, 2016, prior to a ruling on Mr. MackeyÓs Motion to

Withdraw as Counsel of Record, Mark Barnebey, Esquire, filed a

Notice of Appearance on behalf of Respondent. 4 / On August 1 7 ,

2016, a Notice of Telephonic Status Conference and Hearing on

Motion to Withdraw as Counsel of Record was entered, scheduling a

telephonic conference call for August 18, 2016. The telephonic

conference call was held as scheduled, but Mr. Mackey did not

attend. A n Order Denying Motion to Withdraw as Counse l was

entered on August 18, 2016 , because Mr. Mackey had not appeared

at the telephonic hearing or complied with applicable rules . In

addition, an Order on Status Conference was entered on August 18,

2016, requiring the parties , by a time certain, to advise whether

a transcript of the final hearing would be ordered and requiring

the parties to file their propose d recommended orders by

October 10, 2016, if they decided not to order a transcript.

Having not timely heard from the parties whether a

tra n script would be ordered, on September 19, 2016, an Order

requiring p roposed recommended orders to be filed by October 10,

2016, was entered. No transcript of the final hearing was ever

filed.

PetitionerÓs Proposed Recomme nded Order was filed on

October 24, 2016. Neither Respondent nor Great American

Insurance Company filed a proposed recommended order.

PetitionerÓs Memorandum and PetitionerÓs Proposed Recommended

Order have been considered in preparing this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a Florida limited liability company,

whose principal address is 11 76 C - 478A, Webster, Florida 33597.

Petitioner is a producer of agricultural products as defined by

section 604.15(5) . Petitioner grows and supplies shrubs, trees,

and ground covers .

2. At all pertinent times, Respondent , a Florida for -

profit corporation , has been a dealer in agricultural products

as defined in section 604.15(1), with a principal address of

2504 64 th Street Court East, Bradenton, Florida 34208.

Respondent has been doing business as , and is the registered

owner of , the fictitious nam e ÐTurner Tree and Landscape.Ñ

RespondentÓs president is Darrell Turner and its registered

agent is Peter Mac key, Esquire, with the Mackey Law Group in

Bradenton, Florida.

3. Darr ell Turner is also listed as the president of

Turner Tree Farm, Inc., a Florida for - profit corporation , whose

principal address is also 2504 64 th Street Cour t East,

Bradenton, Florida 34208 . Turner Tree Farm, Inc.Ós , registered

agent is the Mackey Law Group in Bradenton, Florida.

4. During all relevant time periods, Great American

Insurance Company, 301 E ast 4 th Street, Cincinnati, Ohio 45202,

has been the surety company providing agricultural surety bonds

for both Len - Tran, Inc. , and Turner Tree Farm, Inc. , in favor of

the Department as obligee. The agricultural surety bond

provided by Great American Insurance Company for Len - Tran, Inc. ,

is Bond No. 3118082 . The agricultural surety bond provided by

Great American Insurance Compa ny for Turner Tree Farm, Inc. , is

Bond No. 3118081 .

5. From July 20 through August 21, 2015 , Petitioner

delivered $16,139.33 worth of agricultural products to Len - Tran,

Inc. These products were accept ed , yet Len - Tran, Inc. , has not

paid for these products. All of the underlying purchase orders

from Respondent to Petitioner for the subject agricultural

products , which were delivered and invoiced to Respondent , were

prepared on letterhead , entitled "Turner Tree and Landscape ,

2504 64th Street Court East, Bradenton FL 34208. "

6. PetitionerÓ s Claim , setting forth the basis of

Petitioner's claim against Respondent and its surety, was filed

with the Department on November 13, 2015 , which is less than six

months from the deliveries that form the basis of the claim.

7. Petitioner's Claim listed "Turner Tree and Landscape"

on line six of the Agricultural Products Dealer Claim Form,

labeled "Legal name of Respondent (Dealer)." The following

examples are printed in a pare nth etical appearing under line six

of the form: "Individual's name, partners names, corporate

name, co - op, etc." On line seven of the form, labeled "Trade

name of Respondent (d/b/a, fictitious name, etc.)," Petitioner

wrote "N/A."

8. Although Petitioner li sted "Turner Tree and Landscape"

on the wrong line of the form, Petitioner's listing of Turner

Tree and Landscape as the Ðr espondent Ñ on the form did not

constitute a filing against Turner Tree Farm, Inc. The

Department, not Petitioner, decided to serve PetitionerÓs Claim

on Turner Tree Farm, Inc. , instead of Len - Tran, Inc. That

decision turned out to be incorrect because ÐTurner Tree and

LandscapeÑ is the fictitious name of Len - Tran, Inc., not Turner

Tree Farm, Inc.

9. Nevertheless, the Department se rved PetitionerÓs Claim

on Turner Tree Farm, Inc. , and Great American Insurance Company

on December 9, 2016 .

10. Petitioner's Corrected Claim was filed by facsimile

with DOAH on February 19, 2016 .

11. There is a cover letter to Petitioner's Corrected

Claim addressed to the undersigned at DOAH. The cover letter

was apparently left off of the facsimile of Petitioner's

Corrected Claim that was filed with DOAH because it does not

appear on the DOAH docket for this c ase. The cover letter was

received into evidence at the final hearing as the first page of

Petitioner's Exhibit P - 5. The cover letter, also dated

February 19, 2016, states:

Case No. 16 - 0278

Hibernia Enterprises, LLC vs. Turner Tree

and Landscape and Great American Ins.

Your Honor:

When we filled out the paperwork to place a

claim on Turner Tree and Landscape's ag bond

on the first page #6 Legal name - we printed

Turner Tree and Landscape not Len - Tran Inc.

Can we please correct #6 and #7 so it

state s:

6. Legal name of Respondent (Dealer): Len -

Tran, Inc.

ade name of Respondent (d/b/a,

fictitious name, etc): Turner Tree and

Landscape

I have enclosed a copy of the original first

page filed, corrected first page how it

should read and Turners Answer of

Respondent.

Sincerely,

David Counihan

President

Certificate of Service:

Copy emailed and faxed to: Len - Tran, Inc.,

d/b/a Turner Tree and Landscape

12. In addition to filing Petitioner's Corrected Claim in

this case on February 19, 2016, afte r the final hearing,

Petitioner also filed Petitioner's Corrected Claim with the

Department o n July 6, 2016. Thereafter, as reflected on

correspondence from the Department to the undersigned filed in

this case on July 11, 2016, as well as attached to Peti tioner's

Memorandum, the Department served copies of Petitioner's

Corrected Claim on Len - Tran, Inc. , and Great American Insurance

Company by mail on July 7, 2016 (the date of the

correspondence). The correspondence attached a copy of the

Agricultural Prod ucts Dealer Bond No. 3118082, in the amount of

$100,000, issued in favor of the Department, as obligee, by

"Len - Tran, Inc. dba Turner Tree & Landscape," as principal, and

by Great American Insurance Company, as surety. A "Change

R ider," was also attached, showing an effective date of the

Len - Tran, Inc.'s , bond from July 6, 2015 , through July 5, 2016.

13. S ince the filing of this case at DOAH, c opies of all

O rders entered in this case have been provided to Respondent and

Great American Insurance Company, and all pleadi ngs and filings

in this case have been available for view on DOAHÓs website.

14. Respondent, Len - Tran, Inc . , d/b/a Turner Tree and

Landscape filed Chapter 11 b ankrupt cy on May 13, 2016.

15. While the aut omatic stay imposed by federal b ankruptcy

laws protects Respondent from certai n actions during and after

its b ankruptcy, Great American Insurance Company, as surety for

Respondent, is not alleviated from responsibility of payment of

the clai m , even though Respondent f iled b an kruptcy.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569, 120.57(1), and

604.21(6), Florida Statutes .

17. Hibernia , a s Petitioner, 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 a sserting the

affirmative of an issue has the burden of presenting evidence as

to that issue . Ñ); 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; DepÓt

Agric. & Consumer Serv. July 20, 2009), affÓd , IMG Citrus, Inc.

v. Westchester Fire Ins. Co. , 46 So. 3d 1014 (Fla. 4th DCA

2010); § 120.57(1)(j) , Fla. Stat. ; cf. , Gross v. Lyons , 763 So.

2d 276, 280 n.1 (Fla. 2000) (ÐA preponderance of the evid ence is

Òthe greater weight of the evidence,Ó [citation omitted] or

evidence that Òmore than notÓ tends to prove a certain

proposition.Ñ).

18. Section 604.15 contains the following definitions, in

pertinent part:

(1) "Agricultural products" means the

natural products of the farm, nursery,

grove, orchard, vineyard, garden, and apiary

(raw or manufactured); . . . .

(2) "Dealer in agricultural products" means

any person, partnership, corporation, or

other business entity, whether intinerant or

domiciled within this state, engaged within

this state in the business of purchasing,

receiving, or soliciting agricultural

products from the producer or the producer's

agent or representative for resale or

processing for sale; acting as an agent for

such producer i n the sale of agricultural

products for the account of the producer on

a net return basis; or acting as a

negotiating broker between the producer or

the producer's agent or representative and

the buyer.

* * *

(5) "Producer" means any producer of

agricul tural products produced in the state.

19. Section 604.17 requires dealers in agric ultural

products to be licensed by the Department. As a condition of

licensure , dealers must deliver to the Department a surety bond

or a certificate of deposit. The sure ty bond or certificate of

deposit secures payment to producers for agricultural products

sold to dealers. § 604.20(1), Fla. Stat.

20. Section 604.21 provides , in pertinent part :

(1)(a) Any person, partnership,

corporation, or other business entity

claiming to be damaged by any breach of the

conditions of a bond or certificate of

deposit assignment or agreement given by a

dealer in agricultural products as

hereinbefore provided may enter complaint

thereof against the dealer and against the

surety company, if any, to the department,

which complaint shall be a written statement

of the facts constituting the complaint.

Such complaint shall include all

agricultural products defined in

s . 604. 15 (1), as well as any additional

charges necessary to effectuate the sale

unless these additional charges are already

included in the total delivered price. Such

complaint shall be filed within 6 months

from the date of sale in instances involving

direct sales or from the date on which the

agricultural product was received by the

dealer in agricultural products, as agent,

to be sold for the producer. No complaint

shall be filed pursuant to this section

unless the transactions involved total at

least $500 and occurred in a single license

year. Before a complaint can be processed,

the complainant must provide the department

with a $50 filing fee. In the event the

complainant is successful in proving the

claim, the dealer in agricultural products

shall reim burse the complainant for the $50

filing fee as part of the settlement of the

claim.

(b) To be considered timely filed, a

complaint together with any required

affidavit must be received by the department

within 6 months after the date of sale by

electronic transmission, facsimile, regular

mail, certified mail, or private delivery

service. If the complaint is sent by a

service other than electronic mail or

facsimile, the mailing shall be postmarked

or dated on or before the 6 - month deadline

to be accepted as timely filed.

* * *

(f) Filing a complaint with the department

does not constitute an election of remedies

when the same or similar complaint is filed

in another venue.

(g) The surety company or financial

institution shall be responsible for payment

of properly established complaints filed

against a dealer, notwithstanding the

dealerÓs filing of a bankruptcy proceeding.

(2) Upon the filing of a complaint pursuant

to this section, the department shall

investigate the matters complained of and

if, in the opinion of the department, the

facts contained in the complaint warrant

such action, the department shall serve

notice of the complaint to the dealer

against whom the complaint has been filed at

the last address of record. The notice

shall be accompanied by a copy of the

complaint. A copy of the notice and

complaint shall also be served to the surety

company, if any, that provided the bond for

the dealer, which surety company shall

become party to the action. The notice

shall inform the dealer of a reasonable time

within which to answer the complaint by

advising the department in writing that the

allegations in the complaint are admitted or

denied or that the complaint has been

satisfied. The notice shall also inform the

dealer and the surety company or financial

institution of a right to a hearing on the

complaint, if requested.

* * *

(6) Any party whose substantial interest is

affected by a proceeding pursuant to this

section shall be granted a hearing upon

request as provided by chapter 120. Such

hearing shall be conducted pursuant to

chapter 120. The final order of the

department, when issued pursuant to the

recommended order of an administrative law

judge, shall be final and effective on the

date filed with the departmentÓs agency

clerk. Any party to these proceedings

adversely affected by the f inal order is

entitled to seek review of the final order

pursuant to s . 120.68 and the Florida Rules

of Appellate Procedure. Should a complaint

forwarded by the department to the Division

of Administrative Hearings be settled prior

to a hearing pursuant to chapter 120, the

department shall issue a notice closing the

complaint file upon receipt of the

administrative law judgeÓs order closing the

complaint file, and the matter before the

department shall be closed accordingly.

(7) Any indebtedness set fo rth in a

departmental order against a dealer shall be

paid by the dealer within 15 days after such

order becomes final.

(8) Upon the failure by a dealer to comply

with an order of the department directing

payment, the department shall, in instances

invo lving bonds, call upon the surety

company to pay over to the department out of

the bond posted by the surety company for

such dealer or, in instances involving

certificates of deposit, call upon the

financial institution issuing such

certificate to pay ove r to the department

out of the certificate under the conditions

of the assignment or agreement, the amount

called for in the order of the department,

not exceeding the amount of the bond or the

principal of the certificate of deposit.

* * *

(10) Nothing in this section may be

construed as relieving a surety company from

responsibility for payment on properly

established complaints against dealers

involved in a federal bankruptcy proceeding

and against whom the department is

prohibited from entering an or der.

(11) Upon the failure of a surety company

to comply with a demand for payment of the

proceeds on a bond for a dealer in

agricultural products, a complainant who is

entitled to such proceeds, in total or in

part, may, within a reasonable time, file i n

the circuit court a petition or complaint

setting forth the administrative proceeding

before the department and ask for final

order of the court directing the surety

company to pay the bond proceeds to the

department for distribution to the

complainants. If in such suit the

complainant is successful and the court

affirms the demand of the department for

payment, the complainant shall be awarded

all court costs incurred therein and also a

reasonable attorneyÓs fee to be fixed and

collected as part of the costs of the suit.

In lieu of such suit, the department may

enforce its final agency action in the

manner provided in s. 120.69 .

21. Petit ioner proved that Petitioner, as a producer of

agricultural products, sold and delivered to Re spondent, as a

dealer in agricultural products , $16,139.33 in agricultural

products for which payment has not been made. Petitioner also

proved that it incurred a $50.00 filing fee in filing its claim

against Respondent and its surety.

22. Petitioner's Clai m was timely filed with the

Department within six months after the date of sale .

§ 604.21(1)(b), Fla. Stat.

23. Although the Department sent the Notice of Claim dated

December 9, 2015 , to "Turner Tree Farm, Inc. d /b/a Turner Tree

and Landscape," with a copy to Great American Insurance Company,

that mistake did not defeat notice of a claim made against Len -

Tran, Inc. , to both Respondent and its surety. A review of the

Len - Tran, Inc.'s , bond clearly shows that Len - T ran, Inc., as

principal, was doing business as Turner Tree and Landscape. The

bond was signed by Len - Tran, Inc.'s , president, who was also the

president of Turner Tree, Inc. Further, Great American

Insurance Company was a signatory on the Len - Tran, Inc. , bond

and the Turner Tree, Inc. , bond, and was, at all pertinent

times, on notice that its principal that was doing business as

Turner Tree and Landscape was Len - Tran, Inc., not Turner Tree

Farm, Inc.

24. Petitioner named the correct entity in Petitioner' s

Claim, but used its fictitious name instead of Len - Tran, Inc.

Both Respondent and Great American Insurance Company had actual

notice that Len - Tran, Inc. , was the entity that was doing

business as Turner Tree and Landscape and, therefore, had reason

to k n ow that Len - Tran, Inc. , was the R espondent named in

Petitioner's Claim.

25. While Petitioner's Claim, standing alone , is

sufficient to properly establish Petitioner's complaint against

Respondent and its surety , under the circumstances, it is also

appropriate to recognize and grant Petitioner's request to

correct the legal name of R espondent on Petitioner's Claim as

set forth in Petitioner's Corrected Claim .

26. Petitioner's Corrected Claim is accepted as an

amendment to the petition as set forth in Petitioner's Claim.

An administrative law judge has the power to allow amendments to

petitions pursuant to Florida Administrative Cod e Rule 28 -

106.202. Petitioner's Corrected Claim "relates back" to the

transactions that form the basis of Petitioner's Claim. The

"relate back" doctrine is to be liberally applied and should

apply in this case because the claims made in Petitioner's

Corre cted Claim directly relate back, and are in fact, the same

claims as set forth in Petitioner's Claim. Holley v. Innovative

Technology, Inc. , 803 So. 2d 749 (Fla. 1st DCA 2001).

27. Petitioner met its burden of proving by a

preponderance of the evidence t hat Respondent, as a dealer, and

Great American Insurance Company, as surety, are indebted to

Petitioner for unpaid invoices in the amount of $16,139.33, plus

the $50.00 filing fee, for a total amount due of $16,189.33 .

28. While the federal b ankruptcy laws prevent the entry of

orders against entities protected by the automatic stay, the

fact that Respondent has filed for Chapter 11 b ankruptcy relief

does not relieve Great American Insurance Company, as surety,

under its bond.

29. As provided in section 604.21(1)(g) quoted above, a

dealer's Ðsurety company . . . shall be responsible for payment

of properly established complaints filed against a dealer,

notwithstanding the dealerÓs filing of a bankruptcy petition. "

See also § 604.21(10), Fla. S tat. ( " Nothing in this section may

be construed as relieving a surety company from responsibility

for payment on properly established complaints against dealers

involved in a federal bankruptcy proceeding and against whom the

department is prohibited from entering an order." ) .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Agriculture and Consumer

Services enter a final order finding that $16,189.33

($16,139.33 , plus the $50 filing fee) is the amount of

indebtedness owed to the Petitioner under either Petitioner's

Claim or Petitioner's Corrected Claim, and requiring Great

American Insurance Company to pay that amount to the D epartment

to be distributed to Petitioner out of the bond posted by Great

American Insurance Company for Len - Tran, Inc.

D ONE AND ENTERED this 2nd day of December , 2016 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

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 2nd day of Dec ember, 2016.

ENDNOTES

1/ Mr. Counihan appeared at the hearing as president and owner of

Hibernia Enterprises, LLC . Attorney Olivero entered an

appearance on behalf of Petitioner after the hearing .

2/ Counsel of record was Peter Mackey, Esquire, Mackey Law

Group, P.A. , 402 Third Avenue West, Bradenton, Florida 34205.

After the hearing, Mr. Mackey was granted leave to withdraw as

counsel and Mark P. Barnebey , Esquire, Blalock Walters, P.A.,

802 11th Street Wes t, Bradenton, Florida 34205 , entered an

appearance for Respondent .

3 / Unless otherwise indicated, all citations to the Florida

Statutes are to current versions which have not substantively

changed since the time of the allegations in this case.

4 / Actually, t he Notice of Appearance erroneously stated on

behalf of ÐPetitioner,Ñ however, Mr. Barnebey 's office later

clarified that he was entering an appearance on behalf of

Respondent.

COPIES FURNISHED :

W. Alan Parkinson, Bureau Chief

Bureau of Mediation and Enforcement

Department of Agriculture and

Consumer Services

Rhodes Building, R - 3

2005 Apalachee Parkway

Tallahassee, Florida 32399 - 6500

(eServed)

Great American Insurance Company

301 East 4th Street

Post Office Box 2119

Cincinnati, Ohio 45202

Shiobhan Olivero, Esquire

Olivero Law, P.A.

3900 North Boulevard

Tampa, Florida 33603

(eServed)

Mark P. Barnebey, Esquire

Blalock Walters, P.A.

802 11th Street West

Bradenton, Florida 34205

(eServed)

Lorena Holley, General Counsel

Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

(eServed)

Honorable Adam Putnam

Commissioner of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

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.