17-003275
Other Side Sod, Llc vs.
C. Fullerton And Landscaping Co., Inc., And Great American Insurance Group, As Surety
Status: Closed
Recommended Order on Tuesday, November 7, 2017.
Recommended Order on Tuesday, November 7, 2017.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8OTHER SIDE SOD, LLC,
12Petitioner,
13vs. Case No. 17 - 3275
19C. FULLERTON AND LANDSCAPING
23CO., INC. , AND GREAT AMERICAN
28INSURANCE GROUP, AS SURETY,
32Respondents.
33_______________________________/
34RECOMMENDED ORDER
36Pursuant to notice, a telephonic final hearing in this
45cause was held on October 10 , 2017, before Linzie F. Bogan,
56Administrative Law Judge of the Division of Administrative
64Hearings.
65APPEARANCES
66For Petitioner: Joel C . Deris o , pro se
75Other Side Sod, LLC
793356 Southwest County Road 769
84Arcadia, Florida 34269 - 7112
89For Respondent s : Jean Fullerton, pro se
97C. Fullerton Sod & Landscaping Co., Inc.
104Post Office Box 1936
108Arcadia, Florida 34265
111Douglas J. Aumann , pro se
116Senior Claim Representative
119Great American Insurance Company
123Bond Division
125301 East Fourth Street
129Cincinnati, Ohio 45202
132STATEMENT OF THE ISSUE S
137Whether C. Fullerton and Landscaping Co., Inc., is indebted
146to Other Side Sod, LLC , for the purchase of sod and pallets ;
158and, if so, in what amount.
164PRELIMINARY STATEMENT
166Other Side Sod, LCC ( Petitioner/Other Side Sod ), has sold
177sod to C. Fullerton and Landscaping Co., Inc. (Respondent/
186Fullerton) , for many years . By ÐAgricultural Products Dealer
195Claim Form , Ñ dated March 20 , 20 17 , and received by the Florida
208Dep artment of Agriculture and Consumer Services (Department) on
217March 27 , 20 17 , Petitioner claim s that Fullerton ha s not paid
230for sod and pallets valued at $ 16,317.74 . Co - Respondent, Great
244American Insurance Group (Great American), is RespondentÓs
251surety. R espondent timely denied the claim and the matter was
262referred to the Division of Administrative Hearings (DOAH) for
271final hearing .
274At the final hearing, Petitioner presented the testimony of
283Joel Deriso , who serves as manager for Other Side Sod.
293Responden t offered the testimony of Jean D. Fullerton , who
303serves as president of the company.
309PetitionerÓs Exhibits 1 and 2 were admitted into evidence.
318RespondentÓs Exhibits 1 through 6 were also admitted into
327evidence.
328A transcript of the final hearing was not filed.
337Respondent and Great American filed a Joint Proposed Recommended
346Order, which was considered by the undersigned in the
355preparation of this Recommended Order. Petitioner did not file
364a proposed recommended order . All references to Florida
373Statutes will be to 2016, unless otherwise indicated.
381FINDING S OF FACT
3851. Petitioner is a Florida Limited Liability Corporation
393located in Arcadia, Florida, and at all times relevant
402hereto was a producer of agricultural products, as defined by
412section 604.15(9) , Florida Statutes. Petitioner is also a
420Ðdealer in agricultural productsÑ within the meaning of
428section 604.15(2).
4302. Respondent, during all times relevant hereto, was a
439Ðdealer in agricultural products,Ñ within the meaning of section
449604.15(2).
4503. At all times relevant to this proceeding, Great
459American served as surety for Respondent .
4664. At all times relevant to this proceeding, Respondent
475was a customer of Other Side Sod. Respondent purchased sod from
486Petitioner and thereafter resold and installe d the sod to
496RespondentÓs customers.
4985. Petitioner sold sod to its customers on wooden pallets.
508An integral part of each transaction involved the pallets.
5176. There are 10 invoices in dispute which cover the period
528October 14, 2016 , through February 10, 2017. For the underlying
538transactions that relate to the invoices in question, the
547following language is contained on each field/delivery ticket:
555Terms of Sale : Payment due upon
562receipt. All payment[s] applied to
567pallet balance first. Interest at the
573rate of 1 1/2% per month will be
581charged on unpaid invoice amounts after
58714 days. Invoices will be charged
593$0.02 per square foot additional after
59930 days. Purchaser agrees to pay all
606costs of collection, including attorney
611fees, in [ the ] event it is nec essary to
622institute suit for collection. Venue
627will be in DeSoto County, Florida. All
634Sales F.O.B. Shipping Point.
6387. On or about October 14, 2016, Petitioner sent
647Respondent invoice 47293 , which showed a balance due of $462 for
658pallets related to the sale of Bahia sod. The invoice remained
669unpaid for more than 30 days and Petitioner, in accordance with
680the terms of sale, amended the original invoice and added a
691charge of two cents for each of the 83,200 units of Bahia sod
705related to the transaction ($ 1,664). Petitioner also added to
716the invoice a charge of $124.80 for sales tax related to the
728late payment penalty ($1,664 x 7.50 percent ).
7378. On or about October 23, 2016, Petitioner sent
746Respondent invoice 47378 , which showed a balance due of $224 for
757pallets related to the sale of Bahia sod. The invoice remained
768unpaid for more than 30 days and Petitioner, in accordance with
779the terms of sale, amended the original invoice and added a
790charge of two cents for each of the 70,400 units of Bahia sod
804relate d to the transaction ($1,408). Petitioner also added to
815the invoice a charge of $105.60 for sales tax related to the
827late payment penalty ($1,408 x 7.50 percent ).
8369. On or about October 24, 2016, Petitioner sent
845Respondent invoice 47420 , which showed a b alance due of $280 for
857pallets related to the sale of Bahia sod. The invoice remained
868unpaid for more than 30 days and Petitioner, in accordance with
879the terms of sale, amended the original invoice and added a
890charge of two cents for each of the 16,000 un its of Bahia sod
905related to the transaction ($320). Petitioner also added to the
915invoice a charge of $24 for sales tax related to the late
927payment penalty ($320 x 7.50 percent ).
93410. On or about November 13, 2016, Petitioner sent
943Respondent invoice 47549 , which showed a balance due of $1,526
954for pallets related to the sale of Bahia sod. The invoice
965remained unpaid for more than 30 days and Petitioner, in
975accordance with the terms of sale, amended the original invoice
985and added a charge of two cents for e ach of the 103,200 units of
1001Bahia sod related to the transaction ($2,064). Petitioner also
1011added to the invoice a charge of $154.80 for sales tax related
1023to the late payment penalty ($2,064 x 7.50 percent ).
103411. On or about December 6, 2016, Petitioner se nt
1044Respondent invoice 47755 , which showed a balance due of $434 for
1055pallets related to the sale of Bahia sod. The invoice remained
1066unpaid for more than 30 days and Petitioner, in accordance with
1077the terms of sale, amended the original invoice and added a
1088charge of two cents for each of the 30,400 units of Bahia sod
1102related to the transaction ($608). Petitioner also added to the
1112invoice a charge of $45.60 for sales tax related to the late
1124payment penalty ($608 x 7.50 percent ).
113112. On or about January 8, 2 017, Petitioner sent
1141Respondent invoice 48093 , which showed a balance due of $1,256
1152for 12,800 units of Bahia sod, $224 for a pallet deposit, and
1165$72 for sales tax. The invoice remained unpaid for more than 30
1177days and Petitioner, in accordance with the t erms of sale,
1188amended the original invoice and added a charge of two cents for
1200each of the 12,800 units of Bahia sod related to the transaction
1213($256). Petitioner also added to the invoice a charge of $19.20
1224for sales tax related to the late payment penal ty ($256 x 7.50
1237percent ).
123913. On or about December 13, 2016, Petitioner sent
1248Respondent invoice 48166 , which showed a balance due of $343 for
1259pallets related to the sale of Bahia sod. The invoice remained
1270unpaid for more than 30 days and Petitioner, in a ccordance with
1282the terms of sale, amended the original invoice and added a
1293charge of two cents for each of the 163,200 units of Bahia sod
1307related to the transaction ($3,264). Petitioner also added to
1317the invoice a charge of $244.80 for sales tax related t o the
1330late payment penalty ($3,264 x 7.50 percent ).
133914. On or about January 29, 2017, Petitioner sent
1348Respondent invoice 48285 , which showed a balance due of $3,000
1359for 40,000 units of Bahia sod, $308 for a pallet deposit, and
1372$225 for sales tax (total = $3,533). On February 3, 2017,
1384Respondent submitted to Petitioner partial payment in the amount
1393of $3,210.50, which left an unpaid balance of $322.50. The
1404balance remained unpaid for more than 30 days and Petitioner, in
1415accordance with the terms of sale, amended the original invoice
1425and added a charge of two cents for each of the 40,000 units of
1440Bahia sod related to the transaction ($800). Petitioner also
1449added to the invoice a charge of $60 for sales tax related to
1462the late payment penalty ($800 x 7.50 p ercent ).
147215. On or about January 31, 2017, Petitioner sent
1481Respondent invoice 48301 , which showed a balance due of $390 for
14925,200 units of Bahia sod, $91 for a pallet deposit, and $29.25
1505for sales tax (total = $510.25). On February 15, 2017,
1515Respondent s ubmitted to Petitioner partial payment in the amount
1525of $468.33, which left an unpaid balance of $41.92. 1/ The
1536balance remained unpaid for more than 30 days and Petitioner, in
1547accordance with the terms of sale, amended the original invoice
1557and added a cha rge of two cents for each of the 5,200 units of
1573Bahia sod related to the transaction ($104). Petitioner also
1582added to the invoice a charge of $7.80 for sales tax related to
1595the late payment penalty ($104 x 7.50 percent ).
160416. On or about February 10, 2017 , Petitioner sent
1613Respondent invoice 48409 , which showed a balance due of $390 for
16245,200 units of Bahia sod, $21 for a pallet deposit, and $29.25
1637for sales tax (total = $440.25). On February 15, 2017,
1647Respondent submitted to Petitioner partial payment in the amount
1656of $398.33, which left an unpaid balance of $41.92. The balance
1667remained unpaid for more than 30 days and Petitioner, in
1677accordance with the terms of sale, amended the original invoice
1687and added a charge of two cents for each of the 5,200 units of
1702Bahia sod related to the transaction ($104). Petitioner also
1711added to the invoice a charge of $7.80 for sales tax related to
1724the late payment penalty ($104 x 7.50 percent ).
1733CONCLUSIONS OF LAW
173617. DOAH has jurisdiction over the parties and the subject
1746matter of this proceeding. §§ 120.569 , 120.57(1) , and 604.21(6),
1755Fla. Stat.
175718. The Department is the state agency responsible for
1766licensing d ealers in agricultural products and investigating and
1775taking action on complaints against such dealers. §§ 604 .15
1785through 604.34, Fla. Stat.
178919. The definition of Ðagricultural productsÑ includes sod
1797that is produced in Florida. § 604.15(1), Fla. Stat. The sod
1808grown by Petitioner is an agricultural product within the meaning
1818of section 604.15(1).
182120. The defin ition of a Ðdealer in agricultural productsÑ
1831includes any Ðcorporation . . . engaged within this state in the
1843business of purchasing, receiving, or soliciting agricultural
1850products from the producer . . . for resale or processing for
1862sale[.]Ñ § 604.15( 2 ), Fla. Stat. Respondent is a dealer in
1874agricultural products within the meaning of section 604.15( 2 ).
188421. Any business claiming to be damaged by any breach of
1895the conditions of an agreement made with a dealer in
1905agricultural products, may file a complaint with the Department
1914against the dealer and against the surety company.
1922See § 604.21(1)(a), Fla. Stat.
192722. As the Petitioner, Other Side Sod bears the burden of
1938proving the allegations of its complaint by a preponderance of
1948the evidence. See DepÓt of Ba nking & Fin., Div. of Sec. & Inv.
1962Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996)
1975(ÐThe general rule is that a party asserting the affirmative of
1986an issue has the burden of presenting evidence as to that
1997issueÑ); Fla. DepÓt of Transp. v. J.W .C. Co. , 396 So. 2d 778,
2010788 (Fla. 1st DCA 1981); Vero Beach Land Co., LLC v. IMG Citrus,
2023Inc. , Case No. 08 - 5435 (Fla. DOAH Mar. 4, 2009; Fla. DACS
2036July 20, 2009), affÓd , IMG Citrus, Inc. v. Westchester Fire Ins.
2047Co. , 46 So. 3d 1014 (Fla. 4th DCA 2010).
20562 3. Section 604.21(1)(a) provides as follows:
2063Any person, partnership, corporation,
2067or other business entity claiming to be
2074damaged by any breach of the conditions
2081of a bond or certificate of deposit
2088assignment or agreement given by a
2094dealer in agricultura l products as
2100hereinbefore provided may enter
2104complaint thereof against the dealer
2109and against the surety company, if any,
2116to the department, which complaint
2121shall be a written statement of the
2128facts constituting the complaint. Such
2133complaint shall includ e all
2138agricultural products defined in s.
2143604.15(1), as well as any additional
2149charges necessary to effectuate the
2154sale unless these additional charges
2159are already included in the total
2165delivered price. Such complaint shall
2170be filed within 6 months from t he date
2179of sale in instances involving direct
2185sales or from the date on which the
2193agricultural product was received by
2198the dealer in agricultural products, as
2204agent, to be sold for the producer. No
2212complaint shall be filed pursuant to
2218this section unless the transactions
2223involved total at least $500 and
2229occurred in a single license year.
2235Before a complaint can be processed,
2241the complainant must provide the
2246department with a $50 filing fee. In
2253the event the complainant is successful
2259in proving the claim, t he dealer in
2267agricultural products shall reimburse
2271the complainant for the $50 filing fee
2278as part of the settlement of the claim.
228624. As part of the claim, Petitioner seeks recovery of the
2297two - cent late payment penalty, and related taxes, charged as a
2309result of RespondentÓs failure to comply with the 30 - day payment
2321provision contained in the terms of sale. On its face, the
233230 - day late penalty provision kicks in only if Respondent is
2344delinquent in remitting payment. Petitioner suggests that the
2352langua ge in section 604.21(1)(a), which allows for recovery of
2362Ðany additional charges necessary to effectuate the sale,Ñ
2371authorizes the recovery of the late payment penalty.
237925. Chapter 604 does not define the term Ðnecessary.Ñ
2388According to Merriam - Webster, t he word ÐnecessaryÑ means
2398Ðabsolutely needed.Ñ Merriam - Webster (2017),
2404https://www.merriam - webster.com/dictionary/necessary . There is
2410no credible evidence that a two - cent per square foot late
2422payment penalty is a charge that is absolutely needed in order
2433to effectuate the sale of sod, and accordingly this penalty is
2444not recoverable as an item of damages authorized by section
2454604.21. 2/ Because section 604.21 does not allow, in this
2464instance, for the recovery of the late payment penalty, then it
2475is also th e case that PetitionerÓs claim for the recovery of
2487additional sales tax is not authorized.
249326. Petitioner proved that it is entitled to recover the
2503amounts set forth in the original invoices, less the partial
2513payments received from Respondent. Accordingl y, Respondent owes
2521Petitioner $4,931.34.
252427. Petitioner a lso seeks recovery of the filing fee paid
2535to the Department for the complaint filed against Respondents on
2545March 27, 2017 . Petitioner paid a $50 filing fee, which is
2557specifically recoverable agains t Respondent.
2562See § 6 04.21(1)(a) , Fla. Stat .
2569RECOMMENDATION
2570Based on the foregoing Findings of Fact and Conclusions of
2580Law, it is RECOMMENDED that the Department of Agriculture and
2590Consumer Services enter a final order approving the claim of
2600Other Side S od, LLC, against C. Fullerton and Landscaping Co.,
2611Inc., in the amount of $4,981.34.
2618DONE AND ENTERED this 7 th day of November , 2017 , in
2629Tallahassee, Leon County, Florida.
2633S
2634LINZIE F. BOGAN
2637Administrative Law Judge
2640Divisi on of Administrative Hearings
2645The DeSoto Building
26481230 Apalachee Parkway
2651Tallahassee, Florida 32399 - 3060
2656(850) 488 - 9675
2660Fax Filing (850) 921 - 6847
2666www.doah.state.fl.us
2667Filed with the Clerk of the
2673Division of Administrative Hearings
2677this 7 th day of Novembe r , 2017 .
2686ENDNOTE S
26881/ Ms. Fullerton, on behalf of Respondent, made partial payments
2698on invoices 48301 and 48409 because she mistakenly believed that
2708the parties agreed on a lower per unit rate as the purchase
2720price for the sod.
27242/ Mr. Deriso testified that he added the penalty provision to
2735the sales agreement because he had experienced difficulty with
2744Respondent timely remitting payment. It was his hope that the
2754penalty provision would encourage Respondent to timely remit
2762payment. This testimony clea rly establishes that the penalty
2771provision was optional and not necessary to effectuate the sale
2781of the sod.
2784COPIES FURNISHED:
2786W. Alan Parkinson, Bureau Chief
2791Department of Agriculture and Consumer Services
2797Rhodes Building, R - 3
28022005 Apalachee Parkway
2805Ta llahassee, Florida 32399 - 6500
2811(eServed)
2812Jean Fullerton
2814C. Fullerton Sod & Landscaping Co., Inc.
2821Post Office Box 1936
2825Arcadia, Florida 34265
2828Joel C . Der i s o
2835Other Side Sod, LLC
28393356 Southwest County Road 769
2844Arcadia, Florida 34269 - 7112
2849(eServed)
2850Dougla s J. Aumann
2854Senior Claim Representative
2857Great American Insurance Company
2861Bond Division
2863301 East Fourth Street
2867Cincinnati, Ohio 45202
2870(eServed)
2871Honorable Adam Putnam
2874Commissioner of Agriculture
2877Department of Agriculture and Consumer Services
2883The Capito l, Plaza Level 10
2889Tallahassee, Florida 32399 - 0810
2894Lorena Holley, General Counsel
2898Department of Agriculture and Consumer Services
2904407 South Calhoun Street, Suite 520
2910Tallahassee, Florida 32399 - 0800
2915(eServed)
2916NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2922All pa rties have the right to submit written exceptions within
293315 days from the date of this Recommended Order. Any exceptions
2944to this Recommended Order should be filed with the agency that
2955will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 11/07/2017
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 10/10/2017
- Proceedings: CASE STATUS: Hearing Held.
- Date: 10/02/2017
- Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 09/28/2017
- Proceedings: Amended Notice of Telephonic Final Hearing (hearing set for October 10, 2017; 9:30 a.m.; amended as to call-in number).
- PDF:
- Date: 09/21/2017
- Proceedings: Order Rescheduling Hearing by Telephone (hearing set for October 10, 2017; 9:30 a.m.).
- Date: 09/21/2017
- Proceedings: CASE STATUS: Status Conference Held.
- PDF:
- Date: 09/14/2017
- Proceedings: Order Canceling Hearing and Notice of Telephonic Case Management Conference.
- PDF:
- Date: 07/06/2017
- Proceedings: Notice of Hearing (hearing set for September 21, 2017; 9:00 a.m.; Arcadia, FL).
- Date: 07/06/2017
- Proceedings: CASE STATUS: Status Conference Held.
- PDF:
- Date: 07/05/2017
- Proceedings: Notice of Telephonic Case Management Conference (case management conference set for July 6, 2017; 11:00 a.m.).
- PDF:
- Date: 07/05/2017
- Proceedings: Redacted copy of payment to OtherSide and related correspondence filed.
- PDF:
- Date: 06/27/2017
- Proceedings: Letter to Judge Bogan from Great American Insurance Company Regarding Settlement Payment filed.
- PDF:
- Date: 06/27/2017
- Proceedings: June 27, 2017 letter to claimant filed by Great American Insurance Company.
- PDF:
- Date: 06/19/2017
- Proceedings: Letter from Douglas Aumann requesting extenson of time to file response to Initial Order filed.
Case Information
- Judge:
- LINZIE F. BOGAN
- Date Filed:
- 06/07/2017
- Date Assignment:
- 06/08/2017
- Last Docket Entry:
- 02/05/2018
- Location:
- Arcadia, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO
Counsels
-
Douglas J. Aumann, Senior Claim Representative
Address of Record -
Joel C Deriso
Address of Record -
Jean Fullerton
Address of Record -
W. Alan Parkinson, Bureau Chief
Address of Record -
Winfrey A Parkinson, Bureau Chief
Address of Record