Findings Of Fact Violation notices for two signs owned by Petitioner were issued and were the subject of this hearing. Subsequent to the taking of the testimony but prior to the close of the record, the Respondent, Florida Department of Transportation, withdrew its complaint against Petitioner, Peterson Outdoor Advertising, on one of the signs, to wit: Board No. 92 located 4.4 miles north of State Road 404, Highway A1A, n/b with copy "Bank Services" for which a violation notice was issued the 14th day of March, 1977. The violation notice issued against Peterson Outdoor Advertising Corporation on Board No. 3297 located at 1.07 miles south of State Road 520 on Highway 1-95, M.P. 37.10 with copy "Seaworld" is the subject of this hearing. The violation notice cited Petitioner for violation of Section 479.07(1), no permit. Petitioner had a sign located in the approximate location of the sign now cited in violation. The sign was badly damaged by what was apparently an act of God, a windstorm. Most of the sign was destroyed as shown by Petitioner's Exhibit 1, a photograph taken in January of 1977. The sign had been constructed with six inch by eight inch beans and a plywood face. The height of the sign was approximately six feet. There were Peterson identifiers on part of the structure that was left standing. A new structure was erected at the approximate same location. Round poles for the supporting structure were erected. The new sign of new materials was built and the elevation of the new sign is approximately twenty feet in height. The State's Exhibits 2 and 3, photos taken on February 4, 1977, show the new structure, Exhibit 2 showing new round poles and the State's Exhibit 3 showing a sign approximately twenty feet in height advertising "Florida's Best Entertainment Value SEAWORLD. On 4 Between Orlando & Walt Disney World" as copy. The State's Exhibit 1 shows the remains of the old sign in the approximate location. The new sign, which is the sign of this hearing, carries the same permit nunber that the prior destroyed sign carried on one of the posts of the structure. The Respondent, Department of Transportation, contends: that no permit was applied for or obtained for the subject sign; that the old sign in the approximate same location was destroyed by an act of God and a new sign was rebuilt in the approximate location without a permit; that the old sign was erected with square poles and to a height of about six feet whereas the new sign was erected with round poles and with a height of approximately 20 feet; that the permit displayed on the new sign is the permit that had been issued to the old destroyed sign and when the sign was blown down the permit expired and should not have been placed on the new sign by the Petitioner, Peterson Outdoor Advertising. Petitioner, Peterson Outdoor Advertising, contends: that no one saw the old sign fall and it is a mere conclusion that it blew down; that it has a permit on it. The Proposed Recommended Order of Petitioner has been considered in the preparation of this Order.
Recommendation Remove the sign, Board No. 32-97. DONE and ORDERED this day of July, 19'77, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 503 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1977. COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire 115 East Morse Boulevard Post Office Box 539 Winter Park, Florida 32790
The Issue The issues for determination in this case are whether Respondent, as a licensed citrus fruit dealer, misappropriated and marketed citrus fruit owned by Petitioner during the 1992-1993 shipping season, and further, whether such actions constitute a violation of the Florida Citrus Code for which proceeds of the citrus fruit dealer's bond executed by Co-Respondent should be paid to Petitioner in satisfaction of Petitioner's claim pursuant to Section 601.66, Florida Statutes.
Findings Of Fact Petitioner, Thompson Fruit Company, is a Florida company with an office in Winter Haven, Florida. Petitioner has been in the business of buying and selling citrus fruit for many years. James Thompson, Jr., (Thompson) is the President of Petitioner. Petitioner was actively engaged in the business of buying and selling citrus fruit during the 1992-1993 shipping season. Respondent, Golden Gem Growers, Inc., is a Florida corporation located in Umatilla, Florida, and was, at all material times, a licensed citrus fruit dealer under the provisions of chapter 601, Florida Statutes. Respondent is a cooperative organization comprised of citrus fruit grower members. Respondent offers various services to its members including harvesting and marketing services. Respondent enters into individual contracts with its grower members to accept and market citrus fruit. During the 1992-1993 shipping season Respondent entered into more than one hundred contracts with its grower members relating to the acceptance and marketing of citrus fruit. Co-Respondent, Fidelity & Deposit Company of Maryland, is a surety company qualified to do business in Florida, which, pursuant to section 601.61, Florida Statutes, during the 1992-1993 shipping season, executed a citrus fruit dealer's bond for Respondent in the amount of $100,000. E.J. Higgins (Higgins) at all material times hereto was a citrus fruit grower and member of Respondent's cooperative organization. On July 23, 1991, Higgins entered into a Revised Grower Member Agreement with Respondent. In accordance with its contract with Higgins, Respondent was obligated to provide citrus fruit harvesting and marketing services to Higgins. On July 5,1990, Higgins had entered into a Crop Agreement and a separate Lease Agreement relating to a citrus grove owned by Pomco Associates, Inc., (Pomco) in Manatee, County, Florida. The grove consisted of approximately 52 acres of red grapefruit trees. The Crop Agreement made no reference to the duration of the agreement. The separate Lease Agreement between Higgins and Pomco expressly stated that the lease ended one year from the date of signing. Higgins provided Respondent with a copy of his July 5, 1990 Crop Agreement and Lease Agreement with Pomco. Respondent thereafter accepted citrus fruit from Higgins which was harvested in the Pomco grove in the 1991-1992 season, and Respondent paid Higgins for the citrus fruit from the Pomco grove at that time. In 1992 and early 1993, Higgins informed Phillip Conant, a Vice- President and Director of the Grower Division of Respondent, that Higgins was a holdover lessee under the Pomco lease, and was entitled to harvest the fruit from the Pomco grove. Under Higgins' contract with Respondent, Respondent was required to provide Higgins with harvesting equipment including trailers and boxes. Respondent was further required under the contract to accept and market the citrus fruit on Higgins' behalf. Respondent advanced Higgins $2,400 toward the marketing of the citrus fruit from the Pomco grove. On January 23, 1993, Higgins requested that Respondent provide him with trailers and boxes to set up Higgins' crew for harvesting the Pomco grove. Respondent complied with Higgins' request, and dispatched a truck and trailer with a load of boxes to the Pomco grove. The truck, trailer and boxes were clearly marked and identified as belonging to Respondent. Prior to this time, on or about December 2, 1992, Petitoner, by and through its President, James Thompson, Jr., had entered into a Purchase Contract and Agreement for the citrus fruit on the same Pomco grove in Manatee County, Florida, for the 1992-1993 season. Under the terms of the contract, Petitioner advanced Pomco $3,000 toward the purchase of the citrus fruit from the Pomco grove. Shortly after Respondent dispatched its equipment to the Pomco grove on January 23, 1993, Thompson was informed that citrus fruit was being harvested from the Pomco grove. Thompson went to the grove, observed the boxes and trailers which were identified as belonging to Respondent, and called Phillip Conant to inform Conant that Thompson had a purchase contract and agreement for the citrus fruit from the Pomco grove. Thompson furnished Conant with a copy of the Petitioner's contract with Pomco. Thompson also contacted the Manatee County Sheriff's Department to remove Higgins' harvesting crew from the Pomco grove. Respondent, by and through its director, Conant, then contacted Higgins who stated that he had obtained a legal opinion that as a holdover lessee under his prior crop agreement and lease with Pomco, he had a right to harvest the fruit from the Pomco grove. Higgins further stated that he expected Respondent to fulfill its contractual obligations to provide harvesting services and to market the citrus fruit. Conant, by telephone, informed Thompson that in light of Higgins' representations, Respondent was unsure as to whether Higgins or Petitioner had a right to harvest the fruit. In response to this information, Thompson stated that he would pursue judicial remedies to resolve the dispute. By letter dated February 4, 1993, Conant confirmed to Thompson that Respondent was taking a "hands off" position as to the dispute between Petitioner and Higgins over the citrus fruit from the Pomco grove. On February 5, 1993, Conant also sent a facsimile copy of the February 4, 1993, letter to Thompson and reiterated to Thompson that Respondent was not knowledgeable of the facts of Petitioner's dispute with Higgins, and would not be involved in the dispute. Between February 7, 1993, and February 13, 1993, Respondent accepted three shipments of citrus fruit from the Pomco grove harvested by Higgins. The three shipments totalled 1,230 boxes. All the fruit accepted by Respondent from the Pomco grove was red grapefruit. At that point in the season, the market for red grapefruit was not good. The net value received by Respondent for the red grapefruit from the Pomco grove was $.9889 per box. A reasonable average price for red grapefruit at that time was $.97 per box. Respondent received a reasonable price per box for the red grapefruit from the Pomco grove during the 1992-1993 shipping season. Respondent received a total of $2,418.86 for the red grapefruit from the Pomco grove. The harvesting costs incurred by Respondent during the 1992- 1993 relating to the Pomco fruit were $1,402.40, leaving a balance of $1,216.34. Respondent has placed the funds received from the Pomco grove fruit during the 1992-1993 shipping season in its escrow account pending a determination as to who is the rightful owner of the funds. Respondent has provided an accurate accounting of the harvesting and marketing of the Pomco grove citrus fruit during the 1992-1993 season. There has not been a judicial resolution of the dispute between Petitioner and Higgins.
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 pursuant to Section 601.66(4), Florida Statutes, dismissing the proceeding. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of May, 1995. RICHARD HIXSON 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 May, 1995. APPENDIX Respondent's Proposed Findings: Paragraphs 1 through 21 adopted and incorporated. Paragraphs 22 revised as to amount remaining due. COPIES FURNISHED: Commissioner Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, FL 32399-0800 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Jerri A. Blair, Esquire Post Office Box 130 Tavares, FL 32778 Ray Mattox, Esquire 170 East Central Avenue Post Office Box 917 Winter Haven, FL 33882-0917 Golden Gem Growers Post Office Box 9 Umatilla, FL 32784 Fidelity & Deposit Company of Maryland Post Office Box 1227 Baltimore MD 31203
The Issue Whether the Department of Transportation should is sue a permit under Chapter 479, Florida Statutes, for the subject outdoor advertising sign.
Findings Of Fact An outdoor advertising sign located 9.85 miles east of Volusia County line on Highway 1-4, East, with copy presently reading, "Four Seasons" was cited for violation by the Petitioner, Department of Transportation. Said violation notice was sent to the Respondent, Peterson Outdoor Advertising Company. The sign is located approximately 1200 feet north of State Road 430-A on the east side of 1-4 facing south and bears a 1974 state permit No. 6273-10. It is not disputed that this sign was owned by Rivers Advertising Company and sold by Rivers Advertising Company by Bill of Sale dated June 21, 1974 to the Petitioner, Department of Transportation. The sign did not conform to the requirements of Chapter 479, Florida Statutes, as evidenced by memorandum dated May 1, 1973, Department of Transportation files, Petitioner's Exhibit 1, and upon its sale to the Department was to have been removed by the Department from its location. The payment for the sign amounted to $4,975 which was paid by check to the owner, Rivers Advertising Company. Rivers Advertising Company had leased the real property on which subject sign stood from the property owner, Mr. Gene Berna. Mr. Berna said that Rivers Advertising Company had not paid under their lease agreement at the time that the Petitioner, Department of Transportation, sought to remove the sign subsequent to its purchase from Rivers on June 21, 1974 and would not let the maintenance crew remove the structure. Dandy Signs claimed ownership of the sign by virtue of the fact that Gene Berna sold it to then and that it purchased a renewal 1974 permit tag Number 6273-10-74 and affixed it to the structure. Dandy Signs had never made an application for a permit for subject sign but through error of the Petitioner acquired the permit sign attached to subject sign through the inclusion of it in a regular renewal procedure. Subject sign was not eligible to be permitted under the renewal procedure inasmuch as said sign had been purchased by the State of Florida on June 21, 1974 and Dandy Signs was not eligible for the renewal permit issued because it did not own the sign. Dandy Signs, claiming ownership for the sign through an agreement with the owner of the property on which the sign was located, then "sold" the subject sign by Bill of Sale to the Respondent, Peterson Outdoor Advertising, by an instrument dated May 27, 1975. The proposed Recommended Order filed by the Respondent has been examined and considered in the preparation of this order. The Hearing Officer further finds: The subject sign is owned by the Petitioner. The property owner, Gene Berna, had no title to the subject sign. His only interest was as lessor of the real property. Dandy Signs was on notice that the sign did not belong to the property owner, Gene Berna, and that it belonged to Rivers Outdoor Advertising. Berna told Dandy Signs the subject sign belonged to Rivers. Dandy Signs should not have requested a renewal permit on a sign not previously owned by it and not purchased from the owner. The Petitioner erroneously issued a renewal permit on subject sign upon Dandy's representation it was the owner of the sign. Respondent, Peterson Outdoor Advertising, received no interest in the sign by the alleged Bill of Sale of May, 1975, inasmuch as it did not buy the sign from the owner, the State.
Recommendation Deny the request for a permit. Remove the subject sign which is owned by the Petitioner and should be removed from the roadside. DONE and ORDERED this 29th day of July, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William Rowland, Esquire 115 East Morse Boulevard Winter Park, Florida 32789
The Issue Whether the sign of Petitioner is in violation of the Florida Statutes, Outdoor Advertising Law, Chapter 479 and particularly Chapter 479.07 for having erected this sign in violation of the zoning regulations and without a permit from the Department of Transportation.
Findings Of Fact An alleged violation notice was sent to Peterson Outdoor Advertising Corporation, Petitioner, by the Respondent, Department of Transportation, on July 27, 1977. The notice indicated that the sign owned by Petitioner located 300 feet north of 5-227, U.S. Highway 301 in Bradford County, Florida, with a blank copy was in violation of Ch. 479, Florida Statutes, Rule 14-10-05 (1)(a), Not zone for conforming sign - sign erected in a zoned agricultural area. Ch. 479.07(1) Florida Statutes, Rule 14-10.04 Sign erected without first [sic] obtaining a permit. A violation notice was received by Michael S. Nelson, lease representative for the Respondent, and a letter was sent to the District Administrator for Outdoor Advertising, Florida Department of Transportation, acknowledging receipt of the violation notice and requesting the Department of Transportation to set the cause for hearing. This administrative hearing is the result of such request. The Peterson Outdoor Advertising Corporation made an application for permit for a sign to be located at the location the subject sign now stands. The application for a permit was not approved for the stated reason that the requested location was in a zoned open rural area and outdoor advertising could not be permitted in such a location. Petitioner was so notified. Nevertheless a sign was erected by Petitioner and Respondent's inspectors found said sign at the location with no copy on it at the first inspection. Subsequent to that inspection, the sign was finished by Petitioner to advertise McDonalds, with the large golden "M", further stating: "Campers/ Buses 3 Miles Ahead on the Right, Open at 7:00 for Breakfast." The sign was erected without a permit in a zoned open rural area in Bradford County. The sign is approximately 15 feet off the right of way of Highway 301 in open rural country at least 3 miles from any industrial or commercial areas. Petitioner contends that he applied for a permit to erect the sign at the subject location but that his application was denied. Regardless, he erected the sign and has been endeavoring to have the rural area rezoned. Respondent, Department of Transportation, contends that the erection of the subject sign is in violation of the law inasmuch as it is the duty of the Department of Transportation to grant a permit before a sign is erected. Respondent further contends that the area in which the sign is located is in open rural country and the proposed sign location, even if it were rezoned to allow outdoor advertising, could not be permitted by the Department inasmuch as such rezoning would be "spot zoning" and contrary to the requirements of Chapter 479, Florida Statutes, Title 1 of the Highway Beautification Act of 1965 and Title 23, U.S. Code and contrary to the concept of "effective control" by the Florida Department of Transportation which has the duty to control outdoor advertising for the State of Florida. In response to a request to the Bradford County Zoning Commission, the following letter was received: Pursuant to our conversation on November 7, relating to the zoning classification of the C. M. Ritch property located approximately 2 miles South of Starke on Hwy. 301, the property is zoned Open Rural and under Bradford County Zoning Ordinances does allow outdoor advertising signs. The area in which the sign was erected is the area indicated in the letter. The Petitioner intentionally erected its sign in the open rural area of Bradford County and continues to allow it to stand although the Bradford County Zoning Ordinances show that no outdoor advertising is to be allowed.
Recommendation Remove the sign of Respondent for intentionally erecting a sign in an unzoned rural area without a permit from the Department of Transportation. Invoke the penalties provided in Section 479.18, Florida Statutes, for both the Petitioner and for the McDonald Corporation whose goods and services are advertised. Section 479.13, Penalties, provides: Any person, violating any provision of this chapter whether as principal, agent or employee for which violation no other penalty is prescribed, shall be guilty of a misdemeanor of the second degree, punishable as provided in Section 775.083: and such person shall be guilty of a separate offense for each month during any portion of which any violation off this chapter is committed, continued or permitted. The existence of any advertising copy on any outdoor advertising structure or outdoor advertising sign or advertisement outside incorporated towns and cities shall constitute prima facie evidence that the said outdoor advertising sign or advertisement was constructed, erected, operated, used, maintained or displayed with the consent and approval and under the authority of the person whose goods or services are advertised thereon. DONE and ORDERED this 13th day of March, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Rick Hurst, Administrator Outdoor Advertising Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Michael S. Nelson Lease Representative Peterson Outdoor Advertising Corp. P. O. Box 301 Ocala, Florida 32670 L. M. Gaines, Director Bradford County Zoning Commission P. O. Drawer B Starke, Florida 32091 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION IN RE: PETERSON OUTDOOR ADVERTISING NOT EFFECTIVE UNTIL TIME EXPIRES TO FILE FOR JUDICIAL Petitioner, REVIEW AND DISPOSITION THEREOF IF FILED vs. FLORIDA DEPARTMENT OF TRANSPORTATION Respondent. / CASE NO. 77-1432T
The Issue Whether Respondent, The Citrus Store, a citrus fruit dealer, owes Petitioner, Hutchinson Groves, Inc., a grower of Florida citrus products, a sum of money for citrus fruit harvested from Petitioner's groves. SUMMARY DISPOSITION On or about December 16, 2003, Petitioner, Hutchinson Groves, Inc., filed a complaint with the Florida Department of Agriculture and Consumer Services (the "Department"), alleging that Respondent, The Citrus Store, owes Petitioner the sum of $27,117.59, for oranges harvested from Petitioner's groves by Respondent pursuant to a written contract. Respondent conceded that it owed some lesser amount to the owner of the groves in question. However, the matter was complicated by the fact that, subsequent to the execution of the contract with Respondent, Petitioner had sold those groves to a third party who also asserted a claim to the proceeds from the sale of the fruit to Respondent. The matter was the subject of litigation in the Circuit Court of the Tenth Judicial Circuit, in and for Highlands County (Case No. GC-02-587), which caused the Department to delay forwarding the matter to the Division of Administrative Hearings until December 2, 2005. The case was assigned to the undersigned and set for hearing on February 2, 2006. The hearing was convened as scheduled. Prior to the taking of testimony, the parties discussed settlement of the matter. At the conclusion of their discussions, the parties stipulated: that the Division of Administrative Hearings has jurisdiction over this matter and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2005); that, at all times relevant to this proceeding, Petitioner was a "producer" pursuant to Subsection 601.03(29), Florida Statutes; that, at all times relevant to this proceeding, The Citrus Store was a "citrus fruit dealer" pursuant to Subsection 601.03(8), Florida Statutes; that Respondent owes Petitioner $27,117.59 for the oranges harvested from Petitioner's groves; and that no interest would be sought or assessed against Respondent on the principal amount owing to Petitioner. Based on the foregoing stipulations, it is RECOMMENDED that a final order be entered requiring Respondent, The Citrus Store, to pay to Petitioner, Hutchinson Groves, Inc., the principal sum of $27,117.59, without interest. DONE AND ENTERED this 8th day of February, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2006. COPIES FURNISHED: Kathy Alves Fidelity & Deposit Company of Maryland Post Office Box 87 Baltimore, Maryland 21203 William Hutchinson Hutchinson Groves, Inc. 1323 Edgewater Point Drive Sebring, Florida 33870 Clifford R. Rhoades, Esquire Clifford R. Rhoades, P.A. 227 North Ridgewood Drive Sebring, Florida 33870 Anthony W. Surber, Esquire Harbsmeier, DeZayas, Harden & DeBari, L.L.P. 5116 South Lakeland Drive Lakeland, Florida 33813 Chris Green, Chief Bureau of License and Bond Division of Marketing 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Office of the General Counsel 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800
The Issue Whether the Respondent Carlyn R. Kulick, d/b/a Carlyn's, failed to pay amounts owing to the Petitioner for the shipment of citrus fruit, as set forth in the Complaint dated April 30, 2001, and, if so, the amount the Petitioner is entitled to recover.
Findings Of Fact At all times material to this proceeding, Spyke's Grove and Carlyn's were "citrus fruit dealers" licensed by the Department. As part of its business, Carlyn's sells to its retail customers "gift fruit" consisting of oranges and grapefruit for shipment to third persons identified by the customers. Carlyn R. Kulick is the owner of Carlyn's and acted on its behalf with respect to the transactions that are the subject of this proceeding. Spyke's Grove is in the business of packaging and shipping "gift fruit" consisting of oranges and grapefruit pursuant to orders placed by other citrus fruit dealers. Barbara Spiece is the president of Spyke's Grove and acted on its behalf with respect to the transactions that are the subject of this proceeding. In November and December 1999, Spyke's Grove received a number of orders for "gift fruit" from Carlyn's. Most of the orders were for single shipments of fruit. One order was for six monthly shipments of fruit. This was the first year Carlyn's had done business with Spyke's Grove, and Carlyn's and Spyke's Grove did not execute a written contract governing their business relationship. On the night of Sunday, December 12, 1999, the Spyke's Grove's packinghouse was destroyed by fire, and its offices were substantially damaged. The fire could not have happened at a worse time because it was at the peak of the holiday fruit- shipping season. Spyke's Grove was able to move into temporary offices and to obtain the use of another packinghouse very quickly. It had telephone service at approximately noon on Tuesday, December 14, 1999, and it began shipping "gift fruit" packages on Friday, December 17, 1999, to fill the orders it had received. Carlyn R. Kulick, the owner of Carlyn's, learned of the fire at Spyke's Grove and attempted to contact the Spyke's Grove offices for an update on the orders Carlyn's had placed for shipment during the holidays. Mr. Kulick was unable to contact anyone at Spyke's Grove for three or four days after the fire, and he was worried that his customers' orders for "gift fruit" would not be shipped on time. Mr. Kulick called another packinghouse and placed orders duplicating some of the orders Carlyn's had placed with Spyke's Grove. Meanwhile, Spyke's Grove was giving priority to its smaller wholesale customers such as Carlyn's, and it shipped all of the orders it had received from Carlyn's. Carlyn's did not cancel its orders with Spyke's Grove or otherwise notify Spyke's Grove that it should not ship the fruit; Mr. Kulick assumed that Spyke's Grove would contact him if it intended to ship the fruit ordered by Carlyn's. Spyke's Grove sent numerous invoices and statements of account to Carlyn's Regarding the gift fruit at issue here. According to the statement of account dated June 1, 2001, as of that date Carlyn's owed Spyke's Grove $1,069.78 for the gift fruit at issue here. Most of the invoices to Carlyn's that were submitted by Spyke's Grove contain the following: "Terms: Net 14 days prompt payment is expected and appreciated. A 1½% monthly service charge (A.P.R. 18% per annum) may be charged on all past due accounts. . . ." Relying on this language, Spyke's Grove also seeks to recover a monthly service charge for each month that Carlyn's account was past due. Carlyn's does not dispute Spyke's Grove's claim that $1,069.78 worth of "gift fruit" was shipped by Spyke's Grove pursuant to orders Carlyn's placed in November and December 1999. Carlyn's' basic position is that it need not pay Spyke's Grove for the fruit because Spyke's Grove did not notify it after the December 12, 1999, fire that it would ship the orders and because Carlyn's had to make sure that its customers' orders were filled. The uncontroverted evidence establishes that Carlyn's was, at the times material to this proceeding, a Florida- licensed and bonded citrus fruit dealer; that, in November and December 1999, Carlyn's submitted orders to Spyke's Grove for the shipment of "gift fruit" consisting of oranges and grapefruit; that Spyke's Grove shipped all of the "gift fruit" ordered by Carlyn's in November and December 1999; that the price of the "gift fruit" shipped by Spyke's Grove pursuant to Carlyn's' orders totaled $1,069.78; and that Spyke's Grove timely filed its complaint alleging that Carlyn's failed to promptly pay its indebtedness to Spyke's Grove for citrus products shipped pursuant to orders placed by Carlyn's. Spyke's Grove is, therefore, entitled to payment of the principal amount of $1,069.78, plus pre-judgment interest. Based on the date of the last invoice which contained a charge for any of the gift fruit at issue here, the prehearing interest would run from May 1, 2000.
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 ordering Carlyn R. Kulick, d/b/a Carlyn's, to pay $1,069.78 to Spyke's Grove, Inc., d/b/a Fresh Fruit Express, Emerald Estate, Nature's Classic, together with pre-judgment interest calculated at the rate specified in Section 55.03, Florida Statutes, on the amounts owing. DONE AND ENTERED this 1st day of November, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2001. COPIES FURNISHED: Carlyn R. Kulick, Owner Carlyn's 1601 Fifth Avenue, North St. Petersburg, Florida 33713 Barbara Spiece, President Spyke's Grove, Inc. 7250 Griffin Road Davie, Florida 33314 Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 541 East Tennessee Street India Building Tallahassee, Florida 32308
The Issue Whether Petitioner's applications for two outdoor advertising signs in Sumter County, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this permitting dispute, Petitioner, Rite Media Enterprises, Inc., seeks the issuance of two state sign permits from Respondent, Department of Transportation (DOT). In preliminary decisions dated August 24, 1998, DOT denied the applications on the ground the land owners had not given Petitioner permission to place the signs on their property. As an additional ground, DOT alleged that one sign violated the spacing requirements by being "[i]n conflict with a[n] existing permitted sign." Petitioner contends, however, that it has two legally enforceable leases with the property owners, and that its applications should be approved. If the applications are approved, the signs would be placed on two parcels of property near Interstate 75 in Sumter County, Florida, one on the east side and one on the west side of the highway. Both parcels are owned by Intervenors, William and Debra Farkus. On July 29, 1998, Dan Hucke, a real estate representative for Petitioner, was "scouting" for suitable billboard locations and decided that Intervenors' property would be a desirable location. After Hucke discussed the matter with Intervenors, the parties agreed to execute lease agreements that day for the two parcels of property in question. A copy of the lease agreements is found in Petitioner's Exhibits 1 and 2 received in evidence. In Hucke's presence, both Debra and William Farkus executed each lease agreement and a Notice of Lease. The documents reflect that only one person, Hucke, served as a witness. Hucke then carried the agreements to Petitioner's president, who executed the agreements on behalf of the corporation. In addition, Hucke's wife, a notary public, placed her seal on the Notice of Lease indicating that the signatures had been signed in her presence after an oath was administered to the lessors. Intervenors were not present when the documents were notarized. The day after the documents were executed, Debra Farkus contacted Hucke by telephone. Hucke told her he would be in the area the following Monday (August 2) and they could "work out" any problems she might have with the agreements. The same day (July 30), Debra Farkus faxed a handwritten letter to Hucke advising him to "[c]ancel the lease as per our conversation immediately," and to not "record them as per our conversation." After receiving the cancellation notice, Hucke met briefly with the Intervenors, but contended at hearing that he could not recall the substance of that conversation. On the other hand, William Farkus testified that in that meeting he again reiterated his desire for the agreements to be cancelled. In any event, Hucke acknowledged that he left the meeting with the impression that the Intervenors objected to the agreements. Despite receiving the foregoing notice and oral advice from Intervenors, Hucke nonetheless believed he had valid leases. Whether he recorded the leases is not of record. However, he promptly filed two applications for sign permits with the DOT, and he enclosed a copy of the lease agreements to evidence the fact that he had the permission of the property owners. When a DOT inspector conducted a preliminary investigation of the applications, he learned that Intervenors did not consent to having the signs on their property. Under long-standing DOT policy (since at least 1992), when this type of dispute occurs, which the inspector says happens "[a]ll the time," it requires that the applicant either submit an affidavit (or present testimony at a hearing) evidencing the fact that the property owners have consented to the placement of a sign on their property, or submit an order of a circuit court reflecting that the lease agreement is enforceable. Where a dispute such as this occurs, in no circumstance does DOT attempt to construe the legal sufficiency of a lease agreement or adjudicate the rights of a party under a lease agreement. The foregoing policy is applied by the agency on a statewide basis, without discretion, and it has a logical and rational basis, particularly since an administrative agency lacks jurisdiction to construe contracts or make property-right determinations. At the hearing, Intervenors again stated that they did not authorize Petitioner to place its signs on their property. In addition, Petitioner did not submit a court order indicating that enforceable leases between the parties existed. DOT presented testimony which established that the proposed sign location in Case No. 98-4459T would violate statutory spacing requirements because the location conflicted with an existing nearby sign. There was no evidence to contradict this assertion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order denying the applications for state sign permits filed by Petitioner. DONE AND ENTERED this 16th day of September, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1999. COPIES FURNISHED: Thomas F. Barry, Secretary Department of Transportation ATTN: James C. Myers, Clerk of Agency Proceedings 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Andrew B. Thomas, Esquire Post Office Box 4961 Orlando, Florida 32802-4961 Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Pamela S. Leslie, General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
Findings Of Fact The remaining alleged non-conforming sign on Exhibit 2 is located within the city limits of Lakeland, Florida at Lake Parker Drive and Main Street. Petitioner acknowledged that if the sign was erected prior to 1972 and meets the requirements of the city of Lake land it is permittable. This sign was purchased by Respondent some two years ago from Outdoor Media who had obtained a permit for the sign on 3 January 1972. The sign was erected shortly thereafter. Accordingly the sign is permittable in its present location. The two signs on Exhibit 1 present a different situation. These signs were purchased by Respondent from Lawrence Company approximately one year ago and the signs were up when Lawrence was purchased. These two signs are located on US 92, 9.50 and 9.60 miles west of US 17. US 92 is a federal-aid primary highway. The zoning in the area is Rural Conservation, however, the owner of the property has applied for and obtained concept approval for a Planned Urban Development (PUD) project. Applications submitted by Lawrence to DOT for a permit to erect these signs (Exhibits 3 and 4) showed the property on which the signs were to be erected to be zoned Commercial or Industrial. A telephone call to the county zoning section by the DOT approving officer confirmed that the zoning was Commercial and a permit was issued. Actually the owner of the property had submitted a PUD application which received concept approval for a country store, boat rental and sales, and other businesses to cater to the users of Saddle Creek Park (Exhibit 7). Extensions of this concept approval have been granted by Polk County through January 24, 1979. Concept approval does not change the zoning or authorize any construction on the property inconsistent with the original zoning. Application for a zoning change to that requested in the application for which concept approval was granted is necessary before the County can or will change the zoning. Such application will be treated as all other applications for zoning changes and the fact that concept approval has been granted does not assure the application for zoning change will be approved. Accordingly the signs shown on Exhibit 1 to be in violation are erected on property presently zoned Rural Conservation and the property was so zoned when the signs were erected.
Findings Of Fact Petitioner has leased land upon which to erect the proposed signs along the I-75 (Exhibit 3). The county tax appraiser's office lists the land in question as Land Use Code 99, which is used for appraisal purposes to designate land not in agricultural use. The county zoning department, which is the agency responsible for zoning, carries the sites in question as zoned agricultural. In any event, neither parcel is zoned commercial and/or industrial.
The Issue The issue is whether the Outdoor Advertising Permits AG820-2 and AG821-2 issued to Respondent, Headrick Outdoor Advertising, (Headrick) should be revoked because Headrick no longer has the permission of the property owner to maintain the subject sign at that location. The Department of Transportation (DOT) presented the testimony of Jack Culpepper and Phillip N. Brown, together with four exhibits admitted into evidence. Headrick presented the testimony of James K. Baughman and had one exhibit admitted into evidence. At the conclusion of the proceedings, the parties agreed that their proposed orders would be filed ten (10) days following filing of the transcript. The transcript was filed on April 22, 1982. Both parties have failed to file proposed orders within ten days following filing of the transcript. Accordingly, this Recommended Order is entered without consideration of any proposed findings of fact or conclusions of law proposed by the parties.
Findings Of Fact Headrick Outdoor Advertising is the holder of permits AG820-2 and AG821-2 located on U.S. 29, three miles north of Alternate 90, in Escambia County, Florida. These permits were originally issued to Western Gate Sign Company in 1982. The permits were subsequently purchased by Headrick Outdoor Advertising. On November 20, 1985, DOT received a letter from Frances E. Hampton, the owner of the property on which the signs had been placed, indicating that the lease with Western Gate Sign Company was signed by an unauthorized person and that a subsequent lease dated October, 1984, had been entered into with Franklin Sign Company. Upon receipt of this letter, DOT wrote a letter to Headrick Outdoor Advertising, giving Headrick thirty days to show cause why its permits should not be revoked because they did not have the continuing permission of the owner. In response to that letter, Headrick requested this formal administrative hearing. Headrick did not present any evidence to DOT prior to this proceeding or in this proceeding which established any continuing permission of the owner. Headrick did introduce a document entitled Land Lease Agreement between Frances E. Hampton and Headrick to erect a sign in the subject location. However, this document contained no date and it therefore cannot be determined when the lease was entered into and the time periods covered by the lease. By Mr. Baughman's own admission, Headrick does not currently have permission of the landowner, having released the landowner from all leases during the pendency of this case. The lease agreement which Headrick introduced was admittedly not signed until some time in 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits AG820-2 and AG821-2 be revoked. DONE AND ENTERED this 11th day of May, 1987, in Tallahassee, Florida. DIANE K. KIESLING 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 11th day of May, 1987. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 James K. Baughman, Sr. Headrick Outdoor, Inc. 808 Brainerd Street Pensacola, Florida 32503 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
