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.


View Dockets  
Summary: Respondent is indebted to Petitioner in the amount of $4,981.34 for the purchase of sod. The amount includes Petitioner's filing fee for its complaint filed with the Department.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 02/05/2018
Proceedings: Agency Final Order filed.
PDF:
Date: 01/29/2018
Proceedings: Agency Final Order
PDF:
Date: 11/07/2017
Proceedings: Recommended Order
PDF:
Date: 11/07/2017
Proceedings: Recommended Order (hearing held October 10, 2017). CASE CLOSED.
PDF:
Date: 11/07/2017
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 10/19/2017
Proceedings: Respondents' Joint Proposed Recommended Order filed.
Date: 10/10/2017
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 10/05/2017
Proceedings: Other Side Sod Court Package 2017-Tickets (exhibits) filed.
PDF:
Date: 10/05/2017
Proceedings: Other Side Sod Court Package (exhibits) filed.
Date: 10/02/2017
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 10/02/2017
Proceedings: Respondent's Response to Other Side Sod's Claim filed.
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: 09/27/2017
Proceedings: Notice of Ex Parte Communication.
PDF:
Date: 09/27/2017
Proceedings: Contract filed by Petitioner.
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: 07/07/2017
Proceedings: Notice of Telephonic Opportunity to Listen to Proceedings.
PDF:
Date: 07/06/2017
Proceedings: Order of Pre-hearing Instructions.
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: 07/06/2017
Proceedings: Request by Great American to appear telephonically filed.
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: 06/22/2017
Proceedings: Request for Extension Via Fax June 19, 2017 filed.
PDF:
Date: 06/22/2017
Proceedings: Notice of Ex Parte Communication.
PDF:
Date: 06/22/2017
Proceedings: Order Granting Extension of Time.
PDF:
Date: 06/19/2017
Proceedings: Letter from Douglas Aumann requesting extenson of time to file response to Initial Order filed.
PDF:
Date: 06/08/2017
Proceedings: Initial Order.
PDF:
Date: 06/07/2017
Proceedings: Agricultural Products Dealer Claim Form filed.
PDF:
Date: 06/07/2017
Proceedings: Notice of Claim Filing filed.
PDF:
Date: 06/07/2017
Proceedings: Letter to W. Parkinson from Jean Fullerton acknowledging notice of filing filed.
PDF:
Date: 06/07/2017
Proceedings: Answer of Respondent filed.
PDF:
Date: 06/07/2017
Proceedings: Agency referral 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

Related Florida Statute(s) (6):