20-003360 Doug Lancaster Farms, Inc. vs. Dobson's Woods And Water, Inc., And Western Surety Company, As Surety Status: Closed Recommended Order on Friday, November 20, 2020.

Summary: Petitioner satisfied its burden of demonstrating that Respondent and/or its surety company owe $12,580.00 for an unpaid invoice.

P RELIMINARY S TATEMENT

If any person or business entity claims to have been damaged by a breach

of contract committed by a dealer 1 in agricultural products , 2 then that person

or business entity can file a complaint against the dealer and its surety

company with the Department of Agriculture and Consumer Services (“the

Department”). § 604.21(1)(a), Fla. Stat. (2019). 3 “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 produc ts, as agent, to be sold for the producer.” Id. If the

Department determines that the facts alleged in the complaint justify further

action, then the Department shall serve notice of the complaint on the dealer

against whom the complaint was filed and the dealer’s surety company.

§ 604.21(2), Fla. Stat. At that point, the surety company becomes a party to

the action. Id. Any party whose substantial interests are at stake in such a

proceeding may request a formal administrative hearing before DOAH, and that hearing shall be conducted pursuant to chapter 120, Florida Statutes.

1 Section 604.15(2), Florida Statutes (2019), defines a “dealer in agricultural products” as

“any person, partnership, corporation, or other business entity, whether itinerant 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 fo r resale or processing for sale; acting as an agent for such producer in 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 representati ve and

the buyer.”

2 Section 604.15(1), defines “agricultural products ” as “ the natural products of the farm,

nursery, grove, orchard, vineyard, garden, and apiary (raw or manufactured); 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 Florida 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. ”

3 Unless stated otherwise, all statutory references shall be to the 2019 version of the Florida

Sta tutes.

§ 604.21(6), Fla. Stat. After receiving a recommended order from DOAH, the

Department issues a final order that is subject to review before a district

court of appeal.

On October 29, 2019, Lancaster Farms filed a claim with the Department

alleging that Dobson’s had not paid $53,245.00 for 269 agricultural products

that had been furnished to Dobson’s by Lancaster Farms. The aforementioned products included trees such as Live Oaks, C rape Myrtles,

Elms, and Magnolias.

After receiving notice of this claim from the Department, Dobson’s filed an

Answer on December 15, 2019, asserting that the vast majority of the money

owed to Lancaster Farms had been paid in November of 2019 or was goin g to

be paid by December 31, 2019. Dobson’s stated in its Answer that “[t]he only

remaining unpaid invoice [of $12,580.00] has not yet been funded by the

owner. Note that our terms are ‘NTO Terms’ listed on the invoice. We provide the producer all Notice t o Owner information and pay the invoice when

funded by the owner.”

The Department referred this matter to DOAH on July 27, 2020, and

the undersigned scheduled a final hearing for September 20, 2020. On

September 9, 2020, the undersigned granted a Motion to Continue filed by

Lancaster Farms and rescheduled the final hearing for November 2, 2020.

The final hearing was convened as scheduled. Lancaster Farms presented

testimony from Kelly Lancaster and Larry Dobson. Lancaster Farms did not

move any exhibits into evidence. Dobson’s presented testimony from Larry

Dobson and did not move any exhibits into evidence.

Only Lancaster Farms filed a Proposed Recommended Order, and that

pleading was considered in the preparation of this Recommended Order.

F INDINGS OF F ACT

Based on the evidence adduced at the final hearing, the record as a whole,

and matters subject to official recognition, the following Findings of Fact are

made:

1. Oden Hardy was the general contractor for a project in Apopka, Florida,

known as the Space Box project. Dobson’s, a subcontractor on the Space Box

project, contracted to purchase 269 trees (including Live Oaks, Crape Myrtles, Elms, and Magnolias) for $53,245.00 from Lancaster Farms.

2. Dobson’s supplied Lancaster Farms with all the info rmation needed to

file a “notice to owner” as authorized by section 713.06, Florida Statutes.

3. A truck from Dobson’s picked up the trees and transported them to the

site of the Space Box project. Upon arriving with the trees, Dobson’s discovered that the re was no means by which the trees could be watered at

the site. Rather than attempting to jury rig some manner of watering system as requested by Oden Hardy, Dobson’s transported the trees to its place of

business, and the trees remain there.

4. The part ies have stipulated that Dobson’s has paid all of the invoices

except for Invoice No. 5810 , totaling $12,580.00.

5. There is no dispute that the trees at issue are “agricultural products”

within the meaning of section 604.15(1). There is also no dispute th at

Dobson’s is a “dealer in agricultural products” within the meaning of section 604.15( 2 ).

C ONCLUSIONS OF L AW

6. DOAH has jurisdiction over the parties to this proceeding and the

subject matter pursuant to sections 120.569, 120.57(1), and 604.21(6) , Flo rida

Statutes .

7. The Department is the state agency responsible for investigating and

taking action on complaints against dealers in agricultural products.

§§ 604.15 through 604.34, Fla. Stat.

8. Any business claiming to be damaged by any breach of the c onditions of

an agreement made with a dealer in agricultural products may file a

complaint with the Department against the dealer and its surety company.

§ 604.21(1)(a), Fla. Stat.

9. As the petitioning party, Lancaster Farms bears the burden of proving

the allegations in its complaint by a preponderance of the evidence. Dep’t of

Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern & Co. , 670 So. 2d

932, 934 (Fla. 1996)(stating that “[t]he general rule is that a party asserting

the affirmative of an issue has the burden of presenting evidence as to that

issue.”); Fla. Dep’t of Transp. v. J.W.C. Co. , 396 So. 2d 778, 788 (Fla. 1 st DCA

1981).

10. Lancaster Farms has satisfied its burden of demonstrating that

Dobson’s still owes $12,580.00 for Invoice No . 5810. Lancaster Farms is also

entitled to recover the $50.00 filing fee associated with the complaint filed on

October 29, 2019, with the Department. § 604.21(1)(a), Fla. Stat. (providing

that “[i]n the event the complainant is successful in proving that claim, the

dealer in agricultural products shall reimburse the complainant for the $50

filing fee as part of the settlement of the claim.”).

11. Dobson’s argues in response to the complaint that it provided the

information Lancaster Farms needed to file a “notice to owner” as provided

for in section 713.06. Furthermore, Dobson’s argues that Lancaster Farms

will be paid once it collects on its lawsuit against Oden Hardy or the owner of

the Space Box project.

12. A “notice to owner” under section 713.06, enables a subcontractor to

seek payment from the owner of a project when payment is not received from

the contractor:

The purpose of the “Notice to Owner” is to inform

the owner that potential lienors who do not have a contract with the owner, may make [a ] claim

against the owner’s property to secure their unpaid debt created in improving that property. The notice allows the owner to be protected and effectively impound monies that ordinarily would go to the

contractor. A Notice to Owner is a mandatory

pro cedural requirement for a lienor not dealing

directly with the owner in order to have a construction lien. A Notice to Owner need not be served by a lienor who is in privity with the owner,

or with the owner’s agent.

Larry R. Leiby, Florida Construction Law Manual § 8.24 (2020 - 2021 ed.).

See Mirror and Shower Door Products, In c . v. Seabridge, Inc. , 621 So. 2d 486,

487 (Fla. 4 th DCA 1993)(noting that “[t]he purpose of the notice to owner is to

protect an owner from the possibility of paying his contractor monies which

ought to go to a subcontractor who remains unpaid.”).

13. Dobson’s has not provided any authority to support its argument, and

the undersigned’s independent research has not discovered any authorities

limiting Lancaster Farms to seeking payme nt from the owner of the Space

Box project. That research has also failed to discovery any authority

requiring Lancaster Farms to file a “ notice to owner ” upon being provided

with the necessary information.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Agriculture and Consumer Services

enter a final order approving the claim of Doug Lancaster Farms, Inc., against Dobson’s Woods and Water, Inc., in the amount of $12,630.00.

D ONE A N D E NTERED this 20th day of November, 2020 , in Tallahassee,

Leon County, Florida.

G. W. C HISENHALL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fa x Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of November, 2020 .

C OPIES F URNISHED :

Larry K. Dobson

Dobson's Woods and Water, Inc.

851 Maguire Road

Ocoee, Florida 34761 - 2915

Kelly Lancaster

Doug Lancaster Farms, Inc.

3364 East County Road 48

Center Hill, Florida 33514

Western Surety Company

Post Office Box 5077

Sioux Falls, South Dakota 57117 - 5077

Kristopher Vanderlaan, Esquire

Vanderlaan & Vanderlaan, P.A.

507 Northeast 8 th Avenue

Ocala, Florida 34470

(eServed)

Steven Hall, General Counsel

Department of Agriculture and Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

(eServed)

Honorable Nicole “Nikki” Fried

Commissioner of Agricult ure

Department of Agriculture and Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.