The Issue Whether, under the provisions of sections 604.15 - 604.34, Florida Statutes, Lester Towell Distributors, Inc., is entitled to recover $2,098 for agricultural products ordered by and delivered to VBJ Packing, Inc
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made. Lester Towell is a dealer in Florida-grown agricultural products. VBJ is a dealer in Florida-grown agricultural products. On May 22, 1995, VBJ placed an order with Lester Towell to purchase a quantity of extra-large green bell peppers. Lester Towell delivered 200 boxes of such peppers to VBJ on May 23, 1995. To fill this order, Lester Towell purchased 63 boxes of peppers from producer Ott Farms, Inc., in Estero, Florida, and 137 boxes from producer Thomas Produce, in Boca Raton, Florida. Lester Towell did not act as agent for these producers; it purchased the products outright. On May 22, 1995, VBJ placed an order with Lester Towell to purchase a quantity of yellow corn. Lester Towell delivered 100 boxes of such corn to VBJ on May 24, 1995. To fill this order, Lester Towell purchased 100 boxes of corn from producer Wilkinson-Cooper, in Belle Glade, Florida. Lester Towell did not act as agent for this producer; it purchased the products outright. On May 24, 1995, VBJ placed an order with Lester Towell to purchase a quantity of jalapeno peppers, white corn, and red radishes. Lester Towell delivered two boxes of jalapeno peppers, 26 boxes of white corn, and 20 boxes of red radishes to VBJ on May 25, 1995. To fill this order, Lester Towell purchased 2 boxes of jalapeno peppers from producer Ott Farms, Inc., in Estero, Florida, and 26 boxes of white corn and 20 boxes of red radishes from producer American Growers in Belle Glade, Florida. Lester Towell did not act as agent for these producers; it purchased the products outright. Lester Towell filed its complaint with the Department of Agriculture and Consumer Services ("Department") pursuant to the provisions of section 604.21(1), Florida Statutes, because VBJ did not pay for the products identified above. There is, however, no evidence to establish that Lester Towell was a producer or the agent or representative of a producer with respect to the products for which it seeks payment. It is, therefore, not a "person" entitled to file a complaint with the Department against VBJ and its surety.
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 dismissing the complaint of Lester Towell Distributors, Inc. DONE AND ENTERED this 3nd day of July 1996 in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July 1996
The Issue The issue in this case is whether Petitioner is entitled to payment from Respondent for sod that it sold.
Findings Of Fact Petitioner grows sod and sells it to persons who are in the business of installing sod. Respondent installs sod for its customers, such as homeowners, businesses, and schools. Both parties are experienced in the sod business, although Respondent has more experience than Petitioner with Floratam sod. Respondent is a large user of sod. Petitioner sold from 3-6 loads daily to Respondent from July to October, 1993. Until the loads in question, there were no problems, and Respondent paid for the sod. On October 5, 1993, Petitioner sold Respondent 18 pallets of Floratam sod. At the agreed-upon rate of 6 cents per square foot, the price of this sod was $432. The next day, Petitioner sold Respondent 36 pallets of Floratam Sod for $864. On October 11, Petitioner sold Respondent 34 pallets for $816. The next day, Petitioner sold Respondent 18 pallets for $432. And on October 14, Petitioner sold Respondent 18 pallets for $432. The total price of the Floratam sod sold to Respondent was thus $2976. For each sale, Petitioner cut the sod and loaded it on the truck of an independent contractor hired by Respondent to transport the sod to the customer's site for installation. For each load, the driver signed an invoice indicating the amount of sod and stating: Your signature acknowledges acceptance. Any claims must be made within 24 hours of delivery or pick up. A 1.5 percent (18 percent per annual) service charge will be added to all accounts 30 days past the invoice date. In the event it is necessary to turn the invoice over for collection or the same has to be collected upon demand of an attorney[,] purchaser agrees to pay all attorney's fees and costs for such collection. The sod was in below-average condition. Petitioner agreed to sell it, and Respondent agreed to buy it, in "as is" condition. The sole warranty attaching to the sod was that Respondent could assert a claim against Petitioner if the claim was asserted within 24 hours of pick up. Sod harvested in early October has undergone the stress of summer weather, in which heat and moisture can damage the grass and leave it in weakened condition. There was little sod left in the area, Respondent's demand for sod due to contractual commitments was great, and Respondent was left with few options but to try to use Petitioner's sod. The price paid by Respondent was somewhat reduced to reflect the below-average condition of the sod. Several factors militate against Respondent's claim that the sod was of such poor quality as to warrant cancellation of the invoiced amounts. First, Respondent did not timely assert a claim against the sod. Respondent did not assert a claim within the 24 hours set forth in the invoices. More important, Respondent ignored subsequent billings for the sod and did not complain about the sod until Petitioner's president spoke with Respondent's president and demanded payment. This conversation took place about 70-80 days after the sales. Other important factors undercutting Respondent's defense are the satisfaction of other purchasers of sod in the same time period and the questionable cultivation practices of some of Respondent's customers. Several persons bought Floratam sod from Petitioner in late September and early October. In most cases acknowledging that the sod was in below-average condition, these purchasers reported that they knew that the sod was purchased in "as is" condition and that, with appropriate irrigation and fertilizing, the sod was successfully established in the customers' property. The record suggests that the some of Respondent's customers, including a major institutional customer, may not have been as careful in maintaining the newly installed sod that was already in somewhat stressed condition.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding Respondent liable for the sum of $2976, plus interest at 18 percent annually, and, if Respondent does not pay said amount, ordering the surety to pay said amount, up to the amount of the bond. ENTERED on April 20, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on April 20, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-8: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance. 3-6: rejected as subordinate. 7-8: adopted or adopted in substance. 9: rejected as subordinate. 10-14: adopted or adopted in substance. 15: rejected as subordinate. 16-22: rejected as unsupported by the appropriate weight of the evidence. 23: rejected as unsupported by the appropriate weight of the evidence to the extent of implication that Respondent initiated the call to express his concerns about the sod quality. 24-26: rejected as subordinate. 27: rejected as recitation of evidence and subordinate. 28-30: rejected as subordinate. 31: [omitted from proposed recommended order]. 32: rejected as irrelevant given "as is" nature of subject transaction, as well as limitation of this remedy to sod against which timely claims are made. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Attorney Kristy C. Shaffer P.O. Drawer 1820 LaBelle, FL 33935 John Charles Coleman Coleman & Coleman 2300 McGregor Blvd. Ft. Myers, FL 33901 Ohio Casualty Insurance Co. Legal Department 136 North Third St. Hamilton, OH 45025
The Issue The issue in this case concerns whether the Respondent Florida Lime Growers, Inc., is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact On May 29, 1991, Petitioner entered into an agreement with Florida Lime Growers, Inc., for the handling of the sale of his fruit on consignment. The terms of that agreement included the following: Florida Lime Growers, Inc., agreed to grade Petitioner's fruit, pack that which met quality standards, and use its best efforts to sell the packed fruit for the benefit of Petitioner on a pooled basis at market price. No specified price was guaranteed by or agreed to be paid to Petitioner by Florida Lime Growers, Inc. Florida Lime Growers, Inc., was entitled to charge a fee for packing Petitioner's fruit and a commission on the sale of the fruit. Florida Lime Growers, Inc., agreed to pay to Petitioner that portion of the sale proceeds received attributable to Petitioner's share of the pool, less all expenses of sale. Florida Lime Growers, Inc., also agreed to pay Petitioner a portion of the anticipated return prior to actual receipt of payment by Florida Lime Growers, Inc., from the ultimate purchaser. At no time did Petitioner contract with Florida Lime Growers, Inc., for the outright purchase by it of all of Petitioner's mangos and avocados, regardless of quality. The terms of Petitioner's agreement with Florida Lime Growers, Inc., are substantially similar to the agreement he entered into with another packing house, Limeco, Inc., on May 28, 1991. When Petitioner or his employees delivered mangos or avocados to Florida Lime Growers, Inc., the load of fruit would be weighed and a receiving ticket would be given to the Petitioner or to his employee showing the date, type of produce, number of bin boxes brought, and the total weight expressed in pounds and bushels (55 pounds per bushel). Florida Lime Growers, Inc., would then take the fruit and grade it, that is, separate out the fruit of good enough quality to be packed and sold. Petitioner was offered the opportunity to pick up the culls (the fruit not good enough to be packed), so that he might attempt to sell them on his own, but he declined to do so as he felt it was too much of a bother to be worth the effort. Florida Lime Growers, Inc., would then sort Petitioner's fruit by size and pack it for sale. Florida Lime Growers, Inc., kept a record of the quantity of Matthews' fruit, by type and size, as well as the proportion of the pool of fruit available for sale which Petitioner's fruit represented. Florida Lime Growers, Inc., sold Petitioner's mangos and avocados at market price. Market prices fluctuate, which is why Florida Lime Growers, Inc., as well as Petitioner's other dealer, Limeco, did not guarantee a rate of return or agree to pay a specified price. Petitioner's rates of return per bushel for sales of his packed mangos and avocados by Florida Lime Growers, Inc., can be determined by dividing the net return by the total weight packed (in pounds) to get a per pound return, then multiplying the result by 55 to arrive at the per bushel return. Applying this formula to the information contained in the account sales reports contained in Respondent's Composite Exhibit 8, the rates of return to Petitioner were as follows: Type of Fruit To be Packed Receipt # Total Weight Packed Total Net Return Per Bushel Return Mango 610 8,280 2,584.58 17.05 Mango 617 4,600 1,435.88 17.05 Mango 623 8,987 3,303.23 20.35 Mango 630 3,102 1,073.95 19.25 Mango 635 2,629 935.79 19.80 Mango 641 3,597 1,311.14 19.80 Mango 651 3,680 1,201.16 15.40 Mango 654 6,083 1,138.35 10.45 Mango 676 1,540 340.14 12.10 Avocado 689 3,800 2,783.91 40.15 Mango 692 220 50.44 12.65 Avocado 696 925 692.56 41.25 Mango 727 15,455 1,666.98 6.05 Mango 740 13,728 2,002.61 8.25 Mango 747 10,021 1,399.91 7.70 Mango 753 7,953 1,159.16 8.25 Petitioner presented no evidence to show that the prices obtained for his fruit by Florida Lime Growers, Inc., were below the market. The only evidence of price other than Respondents' sales was the net return paid to Petitioner by Limeco for mangos delivered by him to that dealer on May 28 and 29, 1991, and after July 1, 1991. That evidence shows that there was a substantial decrease in sales price between May 28, 1991, and July 1, 1991. For instance, Exhibit 2 reflects a net return for mangos delivered at the end of May of $17.85 per bushel. Exhibit 5 reflects a net return for mangos delivered on July 3, 1991, of $9.78 per bushel, with $6.20 per bushel for "No. 2's." Exhibit 4 reflects a net return for mangos delivered between July 5 and July 11 of $6.08 per bushel, with $4.59 per bushel for "No. 2's." The last sale of mangos by Florida Lime Growers, Inc., which included those of the Petitioner, was to Amerifresh, a broker. Amerifresh selected and arranged for the trucking company to transport the shipment to Seattle, Washington. Upon arrival, the shipment of mangos was rejected as a "failed" shipment. The shipment was inspected by a U.S.D.A. inspector and a copy of the U.S.D.A. inspection certificate was obtained by Florida Lime Growers, Inc., maintained in its records, and offered to Petitioner. Florida Lime Growers, Inc., received payment for only the small portion of the shipment which was salvageable. The funds received representing that portion of the shipment comprised of Petitioner's mangos, less his proportionate share of the expenses of sale, were paid to Petitioner. Petitioner presented no evidence to show that Florida Lime Growers, Inc., received any money for his mangos and avocados that it did not pay to him, after deducting the costs of sale and the advances or prepayments made in accordance with their agreement. Petitioner was provided with an accounting with the final check issued for payment from each pool. With respect to the final payment on September 10, 1991, in the amount of $233.07, Matthews received an accounting, including a letter of explanation, and the opportunity to review the records of Florida Lime Growers, Inc. Petitioner spoke with both William Planes and Rachel Trant of Florida Lime Growers, Inc., at unspecified times, but he was not satisfied with the information that either of them provided. The computerized accounting system used by Florida Lime Growers, Inc., is also used by several other businesses in the produce industry. Florida Lime Growers, Inc., employees have offered to explain the printed reports to its customers and have done so on request. 2/ Although he had the opportunity to do, Petitioner never requested assistance or an explanation from the employee of Florida Lime Growers, Inc., who ran the computerized accounting system and who calculated the adjustments and final return to be made on the Amerifresh shipment. Petitioner made no attempt to communicate with anyone from Florida Lime Growers, Inc., after he received his final payment on September 10, 1991. July 1, 1991, was the last date on which Petitioner brought mangos to Florida Lime Growers, Inc., which were accepted by the latter. The last load of Petitioner's mangos brought to Florida Lime Growers, Inc., was refused due to the poor quality. Petitioner's first effort at filing a complaint was on November 18, 1991, when he filed a complaint against "Bill Planes d/b/a Florida Lime Growers, Inc." William "Bill" Planes is the president of, and is one of two directors of, Florida Lime Growers, Inc. Mr. Planes is the person with whom the Petitioner had most of his dealings involving Florida Lime Growers, Inc. Mr. Planes, in his individual capacity, was not a dealer pursuant to Chapter 604, Florida Statutes. Petitioner was notified by the Department of Agriculture and Consumer Services by letter dated January 7, 1992, that his complaint could not be processed until he amended it to name Florida Lime Growers, Inc., as the Respondent. The actual date Petitioner filed the amendment to his complaint is unclear from the documents, but it was not until some time after March 2, 1991, the date on which it was notarized. The first notice of Petitioner's complaint that the Department of Agriculture and Consumer Services sent to Respondent, Florida Lime Growers, Inc., was on March 11, 1992.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order in this case dismissing the Petitioner's complaint, as amended, and denying the relief requested by the Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of September 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September 1992.
The Issue The ultimate issue is whether Olcott Dairy is exempt from permitting requirements regarding treatment and disposal of wastewater from its dairy operation. If it is not exempt, the remaining issue is whether Olcott Dairy must apply for a wastewater treatment and disposal permit from the Department of Environmental Regulation (DER) in order to continue operation.
Findings Of Fact During the early part of 1990, Earl Olcott proposed to construct and operate the Olcott Dairy in Gilchrist County, Florida, near the intersection of State Road 138 and U.S. Highway 129. In response to Olcott's proposal, DER sent Olcott a letter dated February 26, 1990, which advised that he could "either apply for a construction permit covering the treatment and disposal of dairy wastes using the enclosed industrial waste application or pursue an exemption from permitting." Based on the options given to him by DER, Olcott submitted a request for an exemption on March 23, 1990. The request included all the necessary engineering information and drawings. Essentially Olcott proposed a concrete lined waste storage pit sized to prevent the 25-year 24-hour storm event from overflowing and spray irrigation system for distributing the wastes to a hayfield. By letter dated March 26, 1990, DER exempted the proposed dairy from permitting requirements subject to certain conditions. Based on the exemption, Olcott purchased and constructed the proposed dairy, including the waste storage pit. Olcott Dairy commenced operations on January 26, 1991, and continues to operate. On November 8, 1990, the Petitioners wrote to DER about the Olcott Dairy, inquiring about the granting of the exemption to Olcott and seeking a point of entry to challenge the exemption. DER advised that "because these facilities are exempt by rule, the Department does not believe it has taken any action that would be subject to the provisions of Section 120.57 or 403.412(5), F.S." Mr. Olcott was copied on this letter. The Petitioners filed their Petition for Formal Administrative Proceedings on January 3, 1991. NFPOA is comprised of 45 members who live in the area of Olcott Dairy. On April 11, 1991, NFPOA incorporated as a Florida corporation not-for-profit. The purpose of the group, as stated in the Articles of Incorporation, is to protect "the environmental health of the land, air and water in North Florida." Petitioner Eron Carver lives directly across the road from Olcott Dairy and relies for drinking water on wells that pump from the groundwater aquifer lying beneath his home as well as beneath the Olcott Dairy. He also fishes in the Santa Fe River, an Outstanding Florida Water (OFW). After the filing of the Petition, DER wrote to Olcott on February 5, 1991, advising that the decision on the exemption was proposed agency action only and that "no action may be taken on the above exemption" until DER issued a Final Order on entitlement to the exemption. Regrettably for Mr. Olcott, action had already been taken based on the exemption and on DER's letter of December 7, 1990, which had indicated that the exemption was already granted and not subject to challenge by the Petitioners. The dairy was already in operation. The March 26, 1990, letter which found Olcott entitled to an exemption did not advise that the action was proposed and not final. Instead the letter clearly authorized Olcott to proceed with construction and operation of the wastewater management system as proposed and subject to the stated conditions because the proposed project was exempt from DER's permitting requirements. The December 7, 1990, letter clearly reinforced that the exemption was granted and not subject to challenge. On March 1, 1991, DER inspectors went to Olcott Dairy to review the wastewater management system in use. They found that the storage pit had overflowed and that no spray irrigation system had been built. Instead, the wastes were being applied to the field from a tank truck which was being driven slowly over the same 10-foot wide area with its tank valve open. On April 29, 1991, DER advised Olcott by letter that it was no longer supporting the exemption because an exemption was not appropriate and a groundwater discharge permit was necessary. The reasons given for this change in position were New information which shows that dairy activities pose a threat of groundwater contamination; Condition 4 was being violated by Olcott's waste application rates; Condition 7 was violated because the system design engineer failed to certify that the system was constructed to meet the design criteria; The waste management system being operated differed from the proposed design because the wastes were being applied by a tank truck; and The storage pit had apparently overflowed. The primary reason for DER's change was the new information derived from a study of dairies in North Central Florida. This study of dairies similar to Olcott indicated that existing waste management practices of dairies in the Suwannee River Basin have a potential to contaminate groundwater with elevated levels of nitrates and to cause off-site contamination. Specifically, the study found that groundwater beneath more than 45% of the dairies studied had nitrate levels exceeding the state standard of 10 mg/l, with nitrate levels as high as 140 mg/l recorded. Nitrate is a pollutant that can cause health problems in humans, particularly children. The area in which Olcott Dairy is located is highly vulnerable to groundwater contamination because of the underlying Karst geology. Additionally the aquifer under the dairy flows, under normal conditions, toward the Santa Fe River, an OFW. The ground application of wastes by Olcott Dairy allows percolation of wastes, which threatens violation of groundwater standards beyond the boundaries of the dairy. It also threatens to impair the water quality of the Santa Fe River, a contiguous water body. The only way these threats can be evaluated is to require that the waste management system undergo a complete review as part of the permit application process. By its letter of March 26, 1990, DER led Olcott to believe that the exemption was final and that the dairy could operate indefinitely pursuant to the exemption from permitting. Olcott has taken all of its actions in reliance on DER's representations regarding permitting requirements and DER's authority to determine entitlement to exemptions. In reliance on the exemption given in the March 26, 1990, letter, Mr. Olcott expended sums in purchasing the property for the dairy and in building the dairy, including the waste management system currently in place. He will be required to expend additional sums for preparation and filing of a permit application and for installation of monitoring wells and other equipment which may be required to qualify for a permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order and therein: Deny Olcott Dairy's request for an exemption from permitting requirements. Waive permit application fees from Olcott for its permit application and cooperate with Olcott in processing and conditioning for intended approval the permit for which Olcott must apply. RECOMMENDED this 26th day of July, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0750 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted Jointly by Petitioners, North Florida Property Owners Association and Eron W. Carver and by Respondent Department of Environmental Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(5); 3(6); 5(13); 6- 8(14); 9&10(15); 12(16); 13&14(17); and 15(9). Proposed finding of fact 4 is subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 11 is unsupported by the competent, substantial evidence. COPIES FURNISHED: John K. McPherson Attorney at Law McPherson & Coffey, P.A. 22 South Main Street Gainesville, FL 32601 Earl Olcott Olcott Dairy Route 2, Box 417 Brandford, FL 32008 William H. Congdon Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Petitioner, Rosario and Vito Strano d/b/a Strano Farms (Strano Farms), is a grower and shipper of fresh produce in Florida City, Florida (Dade County). Respondent, Mager Corporation d/b/a Gulf Provision Company (GPC), is an agricultural dealer in Jacksonville, Florida, subject to the licensing requirements of the Department of Agriculture and Consumer Services (agency). As such, GPC is obligated to obtain a dealer's license from the agency and to post a surety bond executed by a surety corporation to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this latter requirement, GPC has obtained a surety bond in an undisclosed amount from respondent, Aetna Casualty and Surety Company. This controversy involves a dispute over payment for a shipment of tomatoes purchased from Strano Farms by GPC for further sale to retail vendors. The origins of the dispute began on or about February 2, 1987, when a salesman for Strano Farms accepted a telephone order from Neil R. Sandler, president of GPC, for two lots of "Poppa's Famous" tomatoes. The order was later memorialized by petitioner in a memorandum dated February 7, 1987 reflecting the following: Quantity Description Pkq. Grade Size Price Amount 176 Tomatoes 20# Poppa's Famous 5x6 5.60 $985.00 176 Tomatoes 20# Poppa's Famous 6x6 3.80 528.00 Palletizing .15 52.80 352 Total Due: 1566.40 In addition, Strano Farms prepared a broker's memorandum on February 5, 1987 reflecting that GPC ordered two lots of "breakers," a specific grade of tomato. However, Strano Farms contended the reference to "breakers" was a typographical error by the clerical employee who prepared the document and that actually a different grade had been ordered. According to Rosario Strano, a partner and owner of petitioner, Sandler ordered 176 cartons each of light pink and pink tomatoes. This was corroborated by the fact that in early February, 1987 petitioner had no breaker tomatoes in stock. Sandler could not dispute this since more than fifteen months had passed since the order was placed, and he had no independent recollection of the transaction. The United States Department of Agriculture has established a color classification for tomatoes that sets forth the color of tomatoes by stage of maturity. In ascending order of maturity and color, they are green, breakers, turning, pink, light red and red. Homestead Tomato Packing Company, Inc. (Homestead) is the exclusive packer and shipper for Strano Farms. Homestead processed GPC's order and shipped the tomatoes to GPC on February 3, 1987. Prior to the shipment, sub-lot inspections of the produce from which GPC's shipment was drawn were made by an agency inspector on January 28 and February 2, 1987. The inspector's report indicates that the produce had a "mixed color", that there was no decay and the produce was within the tolerance limits for defects. It reflected further that the shipment met the pink and light pink standards. When the tomatoes arrived in Jacksonville on February 4 or 5, Sandler inspected the produce but was not satisfied with the condition of the tomatoes. He ordered a federal inspection the same day. The report reflected that the 6x6 lot of tomatoes was within federal standards while the 5x6 lot deviated slightly because of bruising and decay. However, the tomatoes conformed to pink and light pink standards. Sandler telephoned Strano Farms and requested that a price adjustment be made. When no agreement could be reached, GPC unilaterally adjusted the amount due to $894.80 and tendered Strano Farms a check in that amount. This amount was based upon a total price of $880.00 for both lots of tomatoes, $52.80 for pelletizing, less $38.00 spent by GPC for an inspection. The total payment was $618.80 less than originally agreed upon by the parties, or the amount being claimed by petitioner. Petitioner contends the adjustment made by respondent is "excessive" and not justified by the actual condition of the tomatoes. Strano Farms is willing to allow an adjustment of up to $1.15 per box for that percentage of boxes in the 5x6 lot that failed to meet standards. This adjustment is consistent with the quality of the tomatoes reflected in the federal inspection report. It is also consistent with the industry practice that any price adjustments should correspond with the condition of the produce as reflected on the federal inspection report. Because the adjustment proposed by petitioner is reasonable and consistent with the report, it should be made. Therefore, respondent should deduct $1.15 per box for those boxes in the 5x6 lot that failed to meet federal standards because of bruising and decay. It should also deduct the cost of the inspection report ($38) and pay petitioner all other amounts due.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent pay petitioner the additional amount due within thirty days from date of final order. In the event payment is not timely made, the surety company should be required to pay this amount. DONE AND ORDERED this 14th day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1988.
The Issue The issue in this case concerns whether the Petitioner should issue a cease and desist order and/or impose sanctions against the Respondent on the basis of allegations that the Respondent, by failing to have its books, accounts, and documents available for examination and by refusing to permit an inspection of its books and records in an investigation and examination, has violated Sections 520.995(1)(a), (f), and (g), Florida Statutes.
Findings Of Fact Sometime during the month of February of 1991, Ms. Jennifer Chirolis, a Financial Investigator from the Department of Banking and Finance, visited the offices of the Barat Company. She spoke with Mr. Roque Barat and determined that the Barat Company was conducting retail installment sales without being licensed to do so under Chapter 520, Florida Statutes. Mr. Chirolis advised Mr. Roque Barat that he needed a license and asked him to cease operations until he obtained the necessary license. The Barat Company thereafter obtained the necessary license and was still licensed as of the time of the formal hearing. Thereafter, the Department received a complaint about the Barat Company from a customer. The customer's complaint was to the effect that the Barat Company had made misrepresentations concerning the fee paid by the customer. The Department initiated an "investigation" of the customer's complaint and also decided to conduct an "examination" of the Barat Company. On April 22, 1992, a Department Examiner, Mr. Lee Winters, went to the office of the Barat Company to conduct the "examination" and "investigation". The Barat Company is operated out of a small office with two employees and a few filing cabinets. When Mr. Winters arrived, employees of the Barat Company were conducting business with two customers. Mr. Winters identified himself to the employees and informed them that he had been assigned to conduct an "examination" and "investigation" of the Barat Company. A Barat Company employee, Mr. Fred Vivar, said that he could not produce the company's records without express authorization from Mr. Roque Barat, that Mr. Roque Barat was out of the country, that he could not get in touch with Mr. Roque Barat at that moment, but that when he did get in touch with him, he would advise Mr. Roque Barat of Mr. Winter's desire to examine the company's books and records. Following a number of telephone calls over a period of several days, on May 1, 1992, Mr. Vivar advised Mr. Winters that he had received authorization from Mr. Roque Barat for the Department to inspect the books and records of the Barat Company. An appointment was made for the Department to inspect the books and records on May 6, 1992, beginning at 10:00 a.m. On May 5, 1992, a letter from an attorney representing the Barat Company was hand delivered to Mr. Winters. The letter included the following paragraph: It is my understanding that you have requested the opportunity to view the records of the above-referenced company, said inspection to take place on May 6, 1992. Please be advised that if this "inspection" is purportedly being done by your agency's authority, pursuant to F.S. 520.996, that no records will be produced absent compliance by your department with F.S. 520.994 including, but not limited to, the Barat Company exercising its right to challenge said subpoena. The Department concluded from the letter of May 5, 1992, that the Barat Company not only refused to produce records without a subpoena, but that, even if served with a subpoena, the Barat Company would resist compliance with the subpoena unless and until ordered to comply by a court. For that reason the Department did not pursue the issuance of a subpoena. Mr. Winters has been involved in over one hundred "examinations" under Chapter 520, Florida Statutes. In the course of those "examinations" there have been only two licensees that did not produce their records. Those two licensees were the Barat Company and another company known as Phase One Credit. Mr. Roque Barat is an officer and director of both Phase One Credit and the Barat Company. The license of Phase One Credit was revoked for its failure to produce its books and records. The refusal to produce the books and records of the Barat Company was occasioned by an effort on the part of Mr. Roque Barat to avoid payment of "examination" fees authorized by Section 520.996, Florida Statutes. In the summer of 1992, the Barat Company filed for bankruptcy, closed down its business operations, and is currently winding up the business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance issue a Final Order in this case to the following effect: Dismissing the charge that the Barat Company has violated Section 520.995(1)(a), Florida Statutes; Concluding that the Barat Company has violated Sections 520.995(1)(f) and (g), Florida Statutes, as charged in the Administrative Complaint; Imposing a penalty consisting of: (a) an administra-tive fine in the amount of one thousand dollars, and (b) revocation of the Barat Company's license; and Ordering the Barat Company to cease and desist from any further violations of Chapter 520, Florida Statutes. DONE AND ENTERED this 23rd day of February, 1993, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5620 The following are my specific rulings on the proposed findings of fact submitted by the parties. Proposed findings submitted by Petitioner: Paragraph 1: Rejected as constituting a conclusion of law, rather than a proposed finding of fact. Paragraphs 2, 3 and 4: Accepted in substance. Paragraph 5: Accepted in substance, with the exception of the last five words. The last five words are rejected as irrelevant to the issues in this case and as, in any event, not supported by clear and convincing evidence. Paragraph 6: Accepted in substance. Paragraph 7: First sentence accepted in substance. Second sentence rejected as irrelevant to the issues in this case. Paragraph 8: First sentence accepted. Second sentence rejected as inaccurate description of letter. (The relevant text of the letter is included in the findings of fact.) Last sentence rejected as subordinate and unnecessary evidentiary details. Paragraph 9: Rejected as irrelevant to the issues in this case. Paragraph 10: First two sentences rejected as irrelevant to the issues in this case. Last two sentences accepted in substance. Paragraph 11: Accepted in substance. Paragraph 12: First sentence accepted in substance. Second sentence rejected as irrelevant to the issues in this case. Paragraph 13: Accepted. Proposed findings submitted by Respondent: As noted in the Preliminary Statement portion of this Recommended Order, the Respondent's proposed recommended order was filed late. The Respondent's proposed recommended order also fails to comply with the requirements of Rule 60Q-2.031, Florida Administrative Code, in that it fails to contain citations to the portions of the record that support its proposed findings of fact. A party's statutory right to a specific ruling on each proposed finding submitted by the party is limited to those circumstances when the proposed findings are submitted within the established deadlines and in conformity with applicable rules. See Section 120.59(2), Florida Statutes, and Forrester v. Career Service Commission, 361 So.2d 220 (Fla. 1st DCA 1978), in which the court held, inter alia, that a party is not entitled to more than a reasonable period of time within which to submit its proposals. Because the Respondent submitted its proposals late and because those proposals fail to comply with the requirements of Rule 60Q-2.031, Florida Administrative Code, the Respondent is not statutorily entitled to a specific ruling on each of its proposed findings and no such specific findings have been made. (As noted in the Preliminary Statement, the Respondent's proposed recommended order has been read and considered.) COPIES FURNISHED: Ron Brenner, Esquire Office of the Comptroller 401 Northwest 2nd Avenue Suite 708-N Miami, Florida 33128 Louis J. Terminello, Esquire 950 South Miami Avenue Miami, Florida 33130 Michael H. Tarkoff, Esquire 2601 South Bayshore Drive Suite 1400 Coconut Grove, Florida 33133 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Copies furnished continued: William G. Reeves, General Counsel Office of the Comptroller The Capitol, Room 1302 Tallahassee, Florida 32399-0350
The Issue The issue presented is whether Petitioner is liable for payment of sales and use taxes.
Findings Of Fact The Department conducted an audit of the business records of Petitioner, a Florida corporation operating a food catering business, covering the audit period of June 1, 1985 through May 31, 1990. As a result of that audit, the Department determined that Petitioner had failed to collect and remit sales taxes due to the Department and was liable for the payment of those unpaid sales taxes. The Department issued an assessment determining that Petitioner owed the amount of $213,683.87 in unpaid taxes, interest, and penalty for the audit period. On October 9, 1992, the Department issued its second revised audit assessment based upon its redetermination of Petitioner's tax liability. On that date, the Department reduced Petitioner's liability to the amount of $147,924.45, which sum includes the unpaid tax, the penalty therefor, and interest through that date. Based on its revised calculations, the Department also determined that interest would accrue at the rate of $27.06 per day until the date of payment. Through the date of the final hearing in this cause, Petitioner has made no payments to satisfy or reduce the amount of assessment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Petitioner liable for the payment of sales tax, penalty, and interest through October 9, 1992, in the amount of $147,924.45 together with the amount of $27.06 interest per day until the date of payment. DONE and ENTERED this 18th day of August, 1994, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1994. APPENDIX TO RECOMMENDED ORDER The Department's proposed findings of fact numbered 1 and 6-8 have been adopted in substance in this Recommended Order. The Department's proposed findings of fact numbered 2-5 and 9-16 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or recitation of the procedural context of this case. COPIES FURNISHED: Eric J. Taylor, Esquire Assistant Attorney General Office of the Attorney General The Capitol, Tax Section Tallahassee, Florida 32399-1050 Richard J. Hays, Esquire 7100 West Commercial Boulevard Suite 109 Lauderhill, Florida 33319 Mark D. Cohen, Esquire 121 Southeast First Street Suite 600 Miami, Florida 33131 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Oglesby Nursery, Inc., is a commercial nursery providing a variety of landscape agricultural products. The principal office for Petitioner is located at 3714 SW 52nd Avenues Hollywood, Florida. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highway, Delray Beach, Florida. Respondent, Garden of Eden, is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department. On or about August 22, 1986, Garden of Eden ordered and received delivery of $7673.40 worth of agricultural products from Petitioner. This purchase consisted of nine may pan coconuts and thirty green malayans trees. All of the trees were accepted and no issue was made as to their condition. On or about September 2, 1986, Garden of Eden ordered and received delivery of $1190.00 worth of agricultural products from Petitioner. This purchase consisted of seven coconut malayans dwarf trees. All of the trees were accepted and no issue was made as to their condition. The total amount of the agricultural products purchased by Garden of Eden from Petitioner was $8863.40. The total amount Garden of Eden paid on this account was $5000.00. The balance of indebtedness owed by Garden of Eden t o Petitioner for the purchases listed above is $3863.40. Petitioner claims it is due an additional sum of $247.77 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry and since Respondent took delivery of additional products knowing interest on past due accounts to be Petitioner's policy. No written agreement of acknowledgment executed by Garden of Eden was presented with regard to the interest claim.
The Issue The issues in this case are whether Raysbrook Sod, Inc. (Respondent), is indebted to Florida Sod, Inc. (Petitioner), related to the sale and purchase of sod, and, if so, in what amount.
Findings Of Fact Petitioner is a corporation engaged in the business of harvesting sod. Petitioner is located in LaBelle, Florida. Respondent is a corporation located in Riverview, Florida, and is also engaged in the sod business. In September 2007, Respondent was interested in purchasing some sod in order to satisfy a customer's needs. Respondent's regional supervisor, Gabriel Monsivais, approached a gentleman by the name of Trampis Dowdle about purchasing sod. Monsivais had never met Dowdle and, in fact, knew him only as "Mr. Trampis." Dowdle represented that he could obtain sod from Petitioner, and a deal was struck. There was no written contract between Monsivais and Dowdle, nor--quite interestingly- -between Petitioner and Respondent. Nonetheless, Respondent had its drivers go to Petitioner's sod field and begin loading sod for Respondent's use. In all, approximately 1,700 pallets of sod were acquired from Petitioner's field by Respondent. Each time a load of pallets was taken, a Load Sheet was created to show the number of pallets, the location of the field, and the name of the person taking the sod. The driver of the truck was expected to sign the Load Sheet, indicating that the sod had indeed been received. There is no dispute between the parties about the number of pallets taken by Respondent's drivers.1 As sod was taken by Respondent, Petitioner would issue an invoice reflecting the amount of sod and the price to be paid. The invoices were sent to Respondent via U.S. Mail. The total amount billed for the sod was $42,559.16. Respondent issued a check (No. 8899) in the amount of $1,271.16, made payable to Petitioner on November 30, 2007, in payment of the first invoice from Petitioner. No further checks from Respondent were received by Petitioner, leaving a balance due of $41,288.00.2 Respondent, however, did attempt to make payments for the sod it purchased. Respondent wrote checks to Dowdle based on Dowdle's representations that he either owned Petitioner's company or was working for Petitioner. In fact, Dowdle neither owned nor was in any way affiliated with Petitioner. Dowdle was apparently defrauding Respondent (and possibly Petitioner as well). Respondent's representative, Joseph Bushong, and Petitioner's representative, Jake Alderman, had never met prior to the day of the final hearing in this matter. There was no written contract between the parties. The entire business relationship between the parties was done orally, based on conversations between Monsivais and Dowdle. Nonetheless, Respondent did obtain over $42,000.00 worth of sod from Petitioner. Respondent does not contest this fact. Respondent's actions indicate acknowledgement of the presumed relationship between the parties. Respondent submitted a credit application to Petitioner with references and credit information to be used by Petitioner in extending credit to Respondent for the sod it was purchasing. Respondent issued at least one check directly to Petitioner for payment of the sod in response to an invoice issued by Petitioner. The check was made payable to "Florida Sod" in the amount of $1,271.16. That check directly corresponds to the amount in Invoice No. 1697 from Petitioner dated October 8, 2007. Respondent did receive additional invoices from Petitioner for the sod Respondent had purchased and received. Clearly, there was an understanding between the two companies that a business relationship existed. After making its first payment to Petitioner, Respondent's subsequent payments for the sod were made directly to Dowdle and his companies. One such payment, made by way of a credit card, was actually applied to a restaurant with which Dowdle apparently had some business connection. Other payments were made via checks made payable to other Dowdle interests. Respondent made payments to Dowdle in the mistaken belief that Dowdle was the agent of or employed by Petitioner. In fact, Dowdle has never been affiliated with Petitioner. Petitioner did not receive any of the payments made by Respondent to Dowdle. Petitioner and Dowdle are not related or affiliated in any fashion (other than a prior arm's-length sod purchase between the two). It is clear that Dowdle received the payments intended for Petitioner in payment for the sod purchased by Respondent. Dowdle, whose whereabouts are unknown by the parties, did not provide Petitioner with the payments. Rather, from the evidence, it appears that Dowdle kept the payments, thereby committing a fraud on both Petitioner and Respondent. Though both parties are somewhat at fault in this matter for failure to utilize normal and acceptable business practices, one or the other party must necessarily bear the burden of payment. The evidence supports Petitioner in this regard because it best followed normal business procedures. Had Respondent made its remittance checks payable to Petitioner (who had issued the invoices), Dowdle would not have been able to abscond with the money. Had Respondent obtained some affirmative proof that Dowdle was an agent of Petitioner, Respondent would have known better than to provide money to Dowdle. Had Respondent contacted Petitioner directly instead of relying on third parties (its foreman and Dowdle), the deception would have been uncovered. However, the facts of this case support the proposition that Petitioner made a valid sale of sod to Respondent, and Respondent did not pay Petitioner for the sod.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services requiring Respondent to pay Petitioner the sum of $41,288.00 within 30 days of entry of a final order. DONE AND ENTERED this 31st day of October, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 31st day of October, 2008.
The Issue Whether disciplinary action should be taken against Respondent’s licenses to practice contracting, license numbers CGC057941, CGC1509240 and QB37866, based on alleged violations of Section 489.1425, and Subsections 489.129(1)(g)1., 489.129(1)(g)2., 489.129(1)(g)3., 489.129(1)(j), 489.129(1)(m), and 489.129(1)(o), Florida Statutes (2007),1 as charged in the Administrative Complaint filed against Respondent in this proceeding.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found. Respondent is and has been, at all times material hereto, a certified general contractor in the State of Florida, having been issued license numbers CGC057941 and CGC1509240. At all times material hereto, Respondent was the primary qualifying agent for ProTeam and Associates, Inc. (ProTeam), which has a certificate of authority, QB number 37866. Respondent alleged in his request for a formal hearing that he sold ProTeam on August 11, 2005, and removed his name as qualifying agent on the same date. However, no proof of such sale and withdrawal was offered in evidence. In addition, Respondent claimed to have placed his two contractors’ licenses on inactive status in April 2007. The records of Petitioner show that the licensure status of Respondent’s Certified General Contractor license numbers CGC057941 and CGC1504240 is “Delinquent Inactive.” These licenses expired on September 30, 2008, and became delinquent on October 1, 2008, upon failure to renew by the date of expiration. Facts Pertaining to Counts I – IV Petitioner’s Case No. 2007-022091 On or about November 8, 2006, Van Winkle entered into a contract with ProTeam to repair water damage to Van Winkle’s residence located at 3620 Ironwood Circle, Building O, Unit 402, Bradenton, Florida. The contracted price for the construction, including change orders, was $18,358.50, of which amount ProTeam accepted approximately $15,604.71. The contract did not contain a statement explaining the consumer’s rights under the Florida Homeowners’ Construction Recovery Fund. Construction commenced on or about November 15, 2006, and continued until ProTeam abandoned the project. At the time ProTeam abandoned the project, the percentage of completion was less than the percentage of the total contract price paid by Van Winkle. Van Winkle had paid monies in the amount of $15,604.71, an amount sufficient to cover the first three draws of the contract, which should have included all aspects of the project except for the cabinet installation and punchlist. Respondent received draws to complete the painting and to order and deliver cabinets and vanities, but failed to do so. Respondent accepted 85 percent of the contract price for Van Winkle’s restoration project and provided only demolition and preparation work, carpet and an unfinished paint job. There is no evidence in the record to suggest that Respondent provided Van Winkle with any refund within 30 days after the job was abandoned, and, given that the paint was unfinished and the vanities and cabinets were not provided there is no evidence that Respondent was entitled to keep the amount of funds received under the terms of the contract. The excess amounted to $6,425.47 On or about January 25, 2007, a lien was filed against Van Winkle’s property by Carpet Corner, Inc. for unpaid services in the amount of $1,745.09. The valid lien was recorded against Van Winkle’s property for carpeting ordered by Respondent for Van Winkle’s job. Respondent received funds from Van Winkle to pay for the carpet, but Respondent failed to apply those funds towards full payment of the carpet subcontractor. The lien was filed on January 29, 2007, and was not released until Van Winkle paid $1,745.09 to the carpet subcontractor on August 23, 2007, a period greater than 75 days. Van Winkle’s testimony seems, at times, to confuse the amount of the lien and the amount paid to release it with the amount paid by Respondent to the carpet subcontractor. However, her testimony also indicates that Respondent only paid $1,000.00 to the carpet subcontractor out of a $2,745.09 total contract. It is clear that the amount of the lien, and the amount paid by Van Winkle to release the lien, was $1,745.09, as indicated in the records of the Manatee County Clerk of Circuit Court. The total investigative costs to Petitioner, excluding costs associated with an attorney’s time, for Petitioner’s case number 2007-022091, was $253.42. Facts Pertaining to Counts VI – IX Petitioner’s Case No. 2007-039332 On or about August 29, 2006, Berry entered into a contract with ProTeam to repair water damage to Berry’s residence located at 4152 Whittner Drive, Land O’Lakes, Florida. The contracted price for the construction, including change orders, was $17,921.33. ProTeam accepted approximately $18,908.74 from Berry for the project. The contract did not contain a statement explaining the consumer’s rights under the Florida Homeowners’ Construction Recovery Fund. No permit was obtained for the project. However, the job was completed. A permit was required for Berry’s project due to the fact that the contract called for the replacement of a shower pan and removal of a structural element. A thorough search of Pasco County records indicated that Respondent did not obtain a permit for this project. The new stucco did not match the old stucco and needed to be redone, and Berry had to pay an additional $988.40 to have the stucco repaired and repainted. The total investigative costs to Petitioner, excluding costs associated with an attorney’s time, for Petitioner’s case number 2007-039332, was $285.51.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that an order be rendered as follows: Finding Respondent guilty of having violated Section 489.1425, Florida Statutes, Count One of the Administrative Complaint, and imposing as a penalty an administrative fine of $2,000.00. Finding Respondent guilty of having violated Subsection 489.129(1)(g)1., Florida Statutes, Count Two of the Administrative Complaint; imposing as a penalty an administrative fine of $2,500.00 and restitution in the amount of $1,745.09;2 and placing Respondent’s licenses (License Nos. CGC057941, GCG1509240, and QB37866) on probation for a period of four years. Finding Respondent guilty of having violated Subsections 489.129(1)(g)2. and (1)(o), Florida Statutes, Count Three of the Administrative Complaint, and imposing as a penalty an administrative fine of $2,500.00 and restitution in the amount of $6,425.47.3 Finding Respondent guilty of having violated Subsection 489.129(1)(j), Florida Statutes, Count Four of the Administrative Complaint, and imposing as a penalty an administrative fine of $5,000.00 Finding Respondent guilty of having violated Subsection 489.129(1)(m), Florida Statutes, Count Five of the Administrative Complaint, and imposing as a penalty an administrative fine of $2,500.00. Finding Respondent guilty of having violated Section 489.1425, Florida Statutes, Count Six of the Administrative Complaint, and imposing as a penalty an administrative fine of $500.00. Finding Respondent guilty of having violated Subsection 489.129(1)(g)3., Florida Statutes, Count Seven of the Administrative Complaint, and imposing as a penalty an administrative fine of $5,000.00 and restitution in the amount of $1,975.81.4 Requiring Respondent to pay Petitioner’s costs of investigation and prosecution, excluding costs associated with an attorney’s time, in the amount of $511.93. DONE AND ENTERED this 6th day of May, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 6th day of May, 2009.
