The Issue Whether Respondent, L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc. and its surety, Western Surety Company owes Petitioner $4,210.00 for East Palatka Holly Trees.
Findings Of Fact Petitioner A.D. Andrews, Inc. is a producer of agricultural products, pursuant to Section 604.15 (9), Florida Statutes. Respondent L.M.I. East, Incorporated d/b/a L.M.I. Landscapes, Inc. is a dealer in agricultural products pursuant to Section 604.15 (2), Florida Statutes. Respondent’s surety is Western Surety Company Teal Pomeroy, a salesman for Petitioner, and Pat Tronzano, Purchasing Manager for Respondent, have a business history representing their respective principals. All previous dealings have been satisfactory, and they share a mutual respect. While at a trade show in Orlando, Florida, Teal and Tronzano entered into an oral agreement for the sale of 31 East Palatka Holly bushes/trees (30 at the rate of $135.00 each, and one for $160.00) at a total price of $4,210.00, due from Respondent to Petitioner. Neither participant in this arrangement testified to any oral terms covering “point of sale” or a guarantee of any condition of the hollies at a final destination. Neither participant testified that a standard course of business on these issues had arisen between them as a result of their prior transactions. On October 9, 2007, Mr. Tronzano sent a third party freighter (trucker) to pick-up the hollies at Petitioner's nursery in Chiefland, Florida, and transport them, at Respondent’s expense, to Selena, Texas, for planting and landscaping by Respondent. Mr. Tronzano did not accompany the third party freighter to Petitioner's nursery or on the subsequent trip to Texas. He never saw the hollies in question prior to loading or while they were still on the truck after loading. The trucker selected by Respondent was one specially skilled in the transport of landscape plants, and Respondent has successfully used him for prior purchases and transports. The third party freight truck arrived at Petitioner’s Chiefland, Florida, nursery at approximately 11:00 a.m. on October 9, 2007, before all the hollies had been dug up. However, the trees that were ready to load and those that had to be dug up were loaded by Petitioner, and by 2:00 p.m., the truck, fully loaded, left Petitioner’s property. Petitioner’s invoice clearly states: ATTENTION: If these trees are not in satisfactory condition when received, do not accept them. We do not replace trees. Please note any discrepancies or problems with materials. The invoice does not show the trucker noted any problems with the hollies. The trucker also signed the delivery ticket under the statement, “I acknowledge that trees were received in good condition.” Approximately 48 hours later, Mr. Tronzano received a report from Texas that when the freighter delivered the hollies to the Selena, Texas site, some hollies were dead and other were dying. Mr. Tronzano did not personally witness anything at the final destination. Respondent's photographs in evidence, the date of which has not been automatically printed on them, show some trees which had already been unloaded in Texas with dried- out root balls. They show no trees with dried-out root balls still on the truck. All photographs show intact root balls, although they are dusty and some trees are clearly dead or dying. One tree is dead in a pot. Although it had taken Respondent’s trucker approximately 48 hours to get the hollies to their ultimate destination in Texas, the normal driving time is 16-20 hours. Because federal regulations require a period of rest for commercial drivers every eight hours, Respondent put forth the theory that because there had been a delay of three hours at Petitioner’s nursery while some hollies were dug up and loaded, the delaying effect of three hours snowballed to a total delay of as much as 22-28 hours for the truck’s arrival time at the final destination. This theory is speculative and unsubstantiated by the evidence. Despite some earlier attempts, Respondent did not notify Petitioner of the condition of the hollies at the final destination until October 15, 2007. Respondent concedes that 11 of the 131 hollies were accepted in good condition. Whether one of the survivors was the single holly tree sold for $160.00, is not in evidence. Respondent has not paid Petitioner for any of the hollies. Mr. Tronzano has not had a dry-out problem like this one in ten years. Respondent's second theory of why the hollies arrived at the Texas destination in poor shape is an assertion that the way Petitioner processed and handled the harvesting of the hollies adversely affected their health. Respondent speculates that Petitioner’s digging and immediately loading the just-dug hollies onto the truck sent by Respondent resulted in shock to the hollies’ root systems so that the root systems dried out. Mr. Teal and Mr. Tronzano agree that previous trees (not necessarily East Palatka hollies) sold by Petitioner to Respondent had been "pre-dug" and "staged" by Petitioner in anticipation of the arrival of the freighter. “Staging” means that Petitioner dug up the trees, put them on a trailer, and took them to a centralized loading area at the nursery for Respondent’s pick-up. According to Mr. Teal, the foregoing “pre-dig and stage” method prevents "double-handling" of trees, but many trees are dug up only when a truck arrives at the nursery to take them away. Mr. Teal was not present at the nursery on October 9, 2007, but opined that if the hollies on this occasion had been pre-watered, they would be unlikely to die of shock, despite being dug up and loaded right away. Moreover, the particular trees sold to Respondent came out of a field that Petitioner irrigates, so "dry out" should not have been a problem. Mary Andrews works in Petitioner's business office. She did not know about Respondent's order until the truck arrived on October 9, 2007, but she managed the "dig and load" within three hours of the truck’s arrival. She testified that Petitioner digs trees throughout the year so that when a truck arrives, the trees have not been sitting dry in a field for lengthy periods of time. Petitioner sold 3500 similar trees in the previous year without any dry-out problems. Petitioner had admitted in evidence, without objection, Florida Division of Forestry rainfall records for three locations near Petitioner's nursery. All three official records show six inches of rainfall for the week immediately preceding October 9, 2007. Petitioner maintains that the trucker should have watered the hollies en route. Respondent believes the trucker did water them, but the trucker did not testify, so there is no direct evidence that the trucker watered the hollies en route. The parties have tried to work this situation out, but their respective offers of compromise are not admissible herein, pursuant to Section 90.408, Florida Statutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered that Respondent L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc., shall pay Petitioner, A.D. Andrews Nursery, Inc., the sum of $4,210.00, and that if L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc., fails to pay Petitioner, A.D. Andrews Nursery, Inc., within 30 days of the final order, then Respondent, Western Surety Company, shall pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse Petitioner in accordance with Section 604.21, Florida Statutes. DONE AND ENTERED this 3rd day of June, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 3rd day of June, 2008. COPIES FURNISHED: Teal Pomeroy Qualified Representative A.D. Andrews Nursery, Inc. Post Office Box 1126 Chiefland, Florida 32644-1126 Pat Tronzano Qualified Representative L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc. 1437 Halsey Way Carrollton, Texas 75007-4410 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077
Findings Of Fact The Respondent, Robert J. Filer, is a certified general contractor, holding license number CG C002063 and license number CG CA02863 issued by the Construction Industry Licensing Board. The Respondent is also licensed as an architect in the State of Florida, but the charges in the Administrative Complaint are not directed to his license to practice architecture. During the year 1978 a real estate project known as Silver Woods began to build houses in Palm Beach County. This project was a development of Silver Woods, Ltd., a limited partnership. The objective was the construction and sale of 60 homes. The Respondent was hired pursuant to an oral agreement to design the houses, 1/ review shop drawings, secure building permits, inspect the houses, and execute certain bank documents and permit applications. The Respondent pulled the building permits in the name of Sun State Enterprises, a company owned entirely by him, although Sun State Enterprises was not connected with the Silver Woods project. Building permits were pulled in this manner for five of the six dwellings as set forth in the Administrative Complaint. The Respondent had qualified Sun State Enterprises at the beginning of the project. Subsequently, when it became evident that the project was failing because the houses could not be constructed profitably for the prices at which they had been sold, the Respondent filed a change of status report and qualified Silver Woods, Ltd. This was done pursuant to advice to the Respondent from an investigator for the Department of Professional Regulation. However, the Respondent never pulled any permits in the name of Silver Woods, Ltd. Work on the Silver Woods project stopped in October of 1979 without any notice to prospective owners, and Silver Woods, Ltd., filed for bankruptcy. The Respondent was listed on several documents as the contractor for the project. Moreover, he executed construction loan agreements in the capacity of contractor for the purpose of fulfilling the requirements of lending institutions for providing additional funds to the project. The Respondent knew these documents, with his signature as contractor, were required before the loan proceeds could be disbursed. The Respondent contends that he is exempt from the requirements of Chapter 489, Florida Statutes, because he was acting as an architect rather than as a contractor. He also contends that he acted as a construction manager, instead of a contractor. However, the Respondent had no authority to hire or fire employees, or to sign checks for Silver Woods, Ltd., or to make management decisions relative to the project. These are functions that are performed by construction managers; they were not part of the Respondent's duties. As an architect, the Respondent is exempt from Chapter 489, Florida Statutes, but as a contractor he is not. The substantial, competent evidence in the record does not support a conclusion that the Respondent acted either as an architect or as a construction manager in connection with the pulling of permits for the Silver Woods project.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that license number CO C002063 and license number CG CA02063 held by the Respondent, Robert Jerome Filer, be revoked. THIS RECOMMENDED ORDER entered on this 6th day of August, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982.
Findings Of Fact On March 10, the Charging Party began negotiations on behalf of both units with the Public Employer seeking a contract for the 1976 - 1977 fiscal year. On May 10, after eight (8) negotiating sessions, the negotiators for both sides reached an agreement upon a tentative contract, subject to ratification by the unit's membership and approval by the Public Employer. During the eight (8) negotiating sessions prior to tentative agreement both sides agreed to the withdrawal of numerous contract proposals. On May 19 and 20, the tentative agreement was submitted to the membership of both units for approval, pursuant to Section 447.309(1), F.S. The membership of both units unanimously rejected the proposed agreement at that time. Thereafter, on May 21, the Charging Party notified the Public Employer of the rejection by letter and requested further negotiations pursuant to Section 447.309(4), F.S. Pursuant to this request the Public Employer and Charging Party met for the first post-rejection negotiating session on May 26. The Charging Party presented the Public Employer with three lists designated as List A, List B, and List C. List A enumerated articles contained within the rejected contract which the Charging Party felt could remain unchanged and would not require further bargaining. List B contained those articles which had been withdrawn during negotiations, but which the Charging Party was of the opinion were not necessary to include in the contract in order for successful ratification by unit members. List C contained those articles in which the Charging Party maintained that further negotiations were necessary in order to achieve a ratifiable contract. See General Counsel`s Exhibit number 4 received in evidence. James R. Norris, the Charging Party's president and chief negotiator testified that the items noted on List C were formulated on the basis of the information which the Charging Party solicited from the voting unit members during discussions which preceded the ratification vote. It is undisputed that on May 26, the Public Employer, through its chief negotiator, Robert E. DuVernoy, refused to negotiate on nine (9) articles found on List C which were presented to it by the Charging Party for further negotiations. Those articles were: leave, work rules, P.B.A. business, injury leave, pension, safety, group health insurance and funeral expenses, off-duty work, and special skills. DuVernoy testified that there was no requirement that the Public Employer bargain over items that had been withdrawn prior to rejection of the proposed agreement and he therefore did not negotiate on those items. He testified that his refusal was based on language of Section 447.309(4), F.S., and the "negotiating guidelines" signed by the parties at the start of negotiations. Based on this refusal, the Charging Party filed the subject charges with PERC on May 27. After the May 26 meeting the Public Employer, by letter, requested the Charging Party to put its proposals in writing. At the final negotiating session on June 2, specific written proposals on all the articles set forth on the "C" list were presented to DuVernoy, who accepted them but refused to respond and/or negotiate any of those items. DuVernoy maintained his prior position that there was no duty to bargain on items which had been withdrawn. DuVernoy declared impasse and at no time has the Public Employer negotiated on those items contained in List C. The Respondent takes the position that it had no bargaining obligation as to those items contained on List C for two reasons. First of all, it maintains that under the negotiating guidelines there was no requirement for further negotiation once an item had been withdrawn. Secondly, it maintains that Chapter 447.309(4), Florida Statutes, provides that upon rejection only the "agreement" shall be returned to the bargaining agents for further negotiation. (See Respondent's Exhibit number 1 received into evidence and made part hereof by reference). An examination of the negotiating guidelines reflect that it deals with two subjects. The first two sentences deal with proposals that are tentatively agreed to by both parties and provides for the agreement to be tentative and subject to further negotiation by the parties until the final agreement is signed by them. The last sentence provides that "proposals withdrawn by either party shall be initialed by both parties to signify that the proposal is no longer an issue for discussion". Respondent takes the position that the May 10 agreement reached by the negotiators represented a signed agreement and that each of the articles contained therein had been signed by the negotiators initialing the individual articles. Said agreement did not include certain items which had been withdrawn pursuant to paragraph nine (9) of the negotiating guidelines. Upon rejection by the union's membership, Respondent maintains that, under the guidelines, there existed no obligation on the City's part to negotiate on the withdrawn items. It is undisputed that during the course of the negotiations the parties did not rigidly abide by many of the guidelines and in those instances in which there was noncompliance, neither party complained. Respondent takes the position that since paragraph 14 of the guidelines provides for the changing thereof by mutual consent, it is clear that whenever "there is noncompliance with the guidelines and neither party complains, there has been an implicit mutual consent to change the guidelines for that particular application." Respondent maintains that there was never any mutual consent to change paragraph nine (9) of the guidelines. Therefore, Respondent urges that when it refused to bargain on the withdrawn items, it was simply following the guidelines as agreed to by the parties. In further defense of its position, Respondent refers to Chapter 447.309(4), F.S., which states in pertinent part that "if the agreement . . . is not approved by a majority vote of employees voting in the unit, . . . the agreement shall be returned to the chief executive officer and the employee organization for further negotiation." The City's interpretation of this is that when the union's membership rejected the May 10 agreement which had been agreed to by the negotiators, the parties were obligated to negotiate only on the agreement which was rejected. It therefore maintains that since the Charging Party submitted to Respondent items for negotiation which were not contained in the May 10 agreement, that the City was under no obligation to bargain based on the cited statute. An examination of the proposals submitted by the Charging Party for further negotiations cover items which have been traditionally found to be mandatory subjects of bargaining. As such, any alleged waiver of a statutory right must be clear and unmistakable. See for example, Timken Roller Bearing v. N.L.R.B., 325 F.2d 746, 54 LRRM 2785 (CA 6, 1963), The Item Company, 220 F.2d 956, 35 LRRM 2709 (CA 5, 1955). And in view of the certification which issued to the Charging Party by PERC, Respondent was under an obligation to continue bargaining with the Charging Party until impasse had been reached and the parties could not resolve their disputes via other statutory means. During the course of the hearing, the Respondent's chief negotiator armed with some approximately twelve (12) years experience at the negotiating table, indicated his familiarity with the negotiating process and was of the opinion that the negotiating process called for ratification by the unit members prior to army final agreement having been reached. Since the testimony is clear that the unit members unanimously rejected the tentative agreement reached on May 10, it necessarily follows that the parties were under an obligation to continue to make efforts to reach an agreement acceptable to both sides. It cannot be said with any degree of seriousness that the parties reached an approved agreement within the meaning of Chapter 447.309, F.S., in view of the unanimous rejection of the proposed agreement by unit members. Turning to the contention by Respondent that the Charging Party's negotiators waived its right to negotiate further on items not contained in the agreement, it is clear from the evidence that the Charging Party's negotiators did not waive or concede on those items which are mandatory subjects of bargaining. Furthermore, a fundamental doctrine of labor law recognizes that an employer is under a continuing obligation to bargain over any matter which is not included in the collective bargaining agreement but affects terms and conditions of employment. See for example, Long Lake Lumber Company, 160 NLRB 123, 63 LRRM 1160 (1966). In this case, the evidence evince that neither the union negotiators nor its members ever indicated a willingness to waive its statutory right to bargain over the items submitted in List C. Based on these facts, and the entire record in this case, I therefore conclude that the Respondent, by refusing to negotiate over mandatory subjects of bargaining, violated Section 447.501(1)(a) and (c), Florida Statutes.
The Issue The issue in this case is whether Respondent discriminated against Petitioner in refusing to hire him.
Findings Of Fact On July 24, 1991, Respondent posted a Job Posting for the job of Fire Coordinator at an annual salary of $24,566 to $34,619. The County advertised the job in general runs of the Orlando Sentinel and Tampa Tribune, as well as local newspapers. The application deadline was August 14, 1991. Learning of the job opening, Petitioner submitted an application. Based on background and experience, Petitioner was well qualified for the job. Consistent with County practice, either the County Commission or the County Administrator had appointed a Selection Committee. The purpose of the Selection Committee was to interview qualified applicants, rate the applicants, and forward their scores to the County Commission. Because the Fire Coordinator is a department head, only the County Commission had the authority to hire the person for the job. The Selection Committee included the chief of the Avon Park Fire Department, the chiefs of either a volunteer or another municipal fire department within the County, the County Administrator, the County Personnel Director, and the Director of the County Office of Management and Budget. The Selection Committee chose five persons to interview, including Petitioner. During the interviews, the Personnel Director asked Petitioner about his relationship with the City of Avon Park. Petitioner admitted that he was preparing to file a job discrimination complaint against the City because he believed that he had been unfairly terminated due to some legal problems that his wife had had. The Selection Committee rated the applicants after the interviews. Petitioner rated the highest. He was tied for the highest on the Personnel Director's tally sheet. The Selection Committee then forwarded the three top applicants to the County Commission for further action. These were Petitioner, Mr. Larry Butler, and Mr. Paul Goddard. The County Commission is free to disregard the recommendations and recommence advertising for the position. Expressing some discontent with the selections, the County Commission unanimously voted to do just that when it considered the recommendations on September 3, 1991. The Commission directed that advertisements should be placed locally and in a regional edition of the Tampa Tribune, following which the applicants should be reduced to five and brought to the County Commission for interviews. There is little evidence of the reasoning for the County's action. One Commissioner is a former Mayor of the City of Avon Park, and she may have expressed some reservations about Petitioner and another former employee of the City. In any event, the County, on September 4, 1991, again posted the Job Posting for the Fire Coordinator's job. The ads were run as directed by the County Commission. The application deadline was September 20, 1991, which was a Friday. On this round, the job of determining what applicants were sufficiently qualified to be granted interviews was borne by the County Administrator and the County Personnel Director. Receiving 14 applications, they determined that two of the new applicants were qualified to be interviewed. These persons were Mr. Mike McCann and Mr. Tim Eures, who was the son of an applicant from the prior round. However, others were entitled to interviews due to County custom. One custom was that whenever the County Commission rejects the recommendations of a Selection Committee and readvertises the position, the persons earlier recommended are entitled to be interviewed during the second round. This meant that Petitioner was entitled to an interview, as were the two other persons recommended by the Selection Committee during the first round. In this case, Mr. Goddard affirmatively indicated that he did not want to submit to an interview with the County Commission, and Mr. Butler presumably showed no interest in the interview. The other relevant custom in the County required that current County employees be allowed a full interview when they applied for a job. Mr. McCann was in this category, although he also was sufficiently qualified to earn an interview without regard to his current employment by the County. Also, Mr. Hank Eures, the father of Tim Eures and an unsuccessful candidate the first time, was extended an offer to interview with the County Commission because he was a current County employee. The County Administrator and County Personnel Director decided on Monday, September 23, 1991, that Mr. McCann, Mr. Tim Eures, Petitioner, and Mr. Hank Eures were entitled to interviews with the Board of County Commissioners. Following the custom of setting the interview schedule at its next regularly scheduled Commissioners meeting, the Board, on September 24, chose the date and set aside time for the interviews to take place. It chose Tuesday, October 1, 1991. On September 26, 1991, (September 27 for Mr. Hank Eures), the County mailed letters to each of the persons to be interviewed informing them of the date, time, and location of the interviews. The County Personnel Director normally telephones the candidates and gives them the same information, but it is unclear if he did so, or was able to do so, with respect to Petitioner. Petitioner received the September 26 letter on Saturday, September 28. He had since become employed as a long- distance tractor-trailer operator and was booked for a long haul on October 1. He was unable to find a substitute for this job. On Monday, September 30, Petitioner's wife called a County employee and informed her of Petitioner's scheduling problem. She explained that Petitioner could not attend the interviews and asked that his interview be rescheduled for another date. As is customary with interviews, the County Commission refused to accommodate Petitioner, so the interviews proceeded without him as scheduled. Following the interviews, the Commissioners selected Mr. Tim Eures as the new Fire Coordinator. The record does not permit a determination as to Mr. Tim Eures' relative qualifications as compared to those of Petitioner. There is no evidence that Petitioner failed to be hired for the Fire Coordinator position due either to legal problems that his wife was having at the time or due to the filing of a charge of discrimination against Petitioner's prior employer, the City of Avon Park.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. ENTERED on April 20, 1993, 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, 1993. APPENDIX Treatment Accorded Proposed Findings of Respondent 1-2: rejected as not findings of fact. 3-5: adopted or adopted in substance. 6: rejected as subordinate. 7: adopted or adopted in substance. 8: rejected as subordinate and recitation of evidence. 9-15 (second sentence): adopted or adopted in substance. 15 (third and fourth sentences)-17: rejected as irrelevant. COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Robert H. Grizzard, II P.O. Box 992 Lakeland, FL 33802-0992 J. Ross Macbeth County Attorney Highlands County P.O. Box 1926 Sebring, FL 33871-1926
The Issue Whether Respondent, Greenway Nursery, Inc. (“Greenway”), is liable to Petitioner, Huntsman Tree Supplier, Inc. (“Huntsman”), for the purchase of landscaping trees, and, if so, in what amount.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: Huntsman is a Florida corporation for profit, located in Lake City, and engaged in the business of commercial tree farming. Its owners are James and Michelle Huntsman. Mr. Huntsman is the president of the company and Ms. Huntsman is the secretary. Greenway is a Florida corporation for profit, located in Morriston, and engaged in the business of commercial nursery and landscaping. Its owner and president is Brian D. Love. At issue in this proceeding are two deliveries of trees from Huntsman to Greenway, one on March 12, 2015, and one on June 23, 2015. The invoice for the March 12 delivery indicates that it was billed to Greenway. It is for 12 East Palatka holly trees, 65 gallons each. The trees are billed at the rate of $240 each, for a total bill of $2,880. The invoice indicates that Greenway took delivery of the trees by customer pick-up. The invoice for the June 23 delivery also states that it was billed to Greenway. The invoice includes one ligustrum, eight feet in height, for $200; one 2.5-inch DBH1/ slash pine for $130; two 4-inch live oaks with a height of 14 to 16 feet for $250 each; and one cypress for $240. The total amount of the invoice is $1,070. Again, the invoice indicates that Greenway took delivery by picking up the trees. All of the trees in both invoices were destined for a landscaping project at Adena Golf and Country Club in Ocala (“Adena”). Both parties were involved in planting trees in different areas of the Adena property. The parties’ course of dealing until June 2015, was not completely explained at the hearing. It was clear that Huntsman would directly bill Greenway for the trees and that Greenway would take delivery of the trees by pick-up. It was unclear whether Huntsman expected to receive payment directly from Adena or whether Greenway would pay Huntsman for the trees from payments Greenway received from Adena. In any event, Greenway accepted the billings and took delivery of the trees in each instance, thus accepting ultimate responsibility for payment to Huntsman. In its answer to the Complaint, and again at the final hearing, Greenway admitted liability for the $2,880 stated in the March 12 invoice. Mr. Love agreed to pay Huntsman that amount within 15 days of entry of the final order in this case. However, Greenway denied liability for the $1,070 stated in the June 23 invoice. Mr. Love stated that his company was not liable for these trees because they were not part of his project with Adena. He stated that he installed these trees to replace trees on the Adena property that had died, but that the dead trees had not been the responsibility of his company. Ms. Huntsman denied that the dead trees had been installed in the area of the Adena property where her company was working. She testified that Adena’s representative told her that she should seek payment from Greenway because the June 23 tree delivery constituted “warranty work.” Greenway had planted trees on the Adena property that had died, and Adena considered Greenway the warrantor of those trees and therefore liable for their replacement. Based on all of the testimony, it appears that Huntsman found itself in the middle of a dispute between Greenway and Adena as to whether Greenway had warranted the trees that died, and became aware of the dispute only after it had billed and delivered the trees to Greenway in accordance with the parties usual course of dealing. The evidence was insufficient to establish that Huntsman had any responsibility for, or prior knowledge of, the dead trees. It will be left to one or the other of these parties to take up the issue of payment with Adena. Fundamental fairness dictates that this burden should fall to Greenway. Greenway had the warranty dispute with Adena that caused this controversy. Greenway accepted the bill of lading and the invoice for the June 23 shipment, and took delivery of the trees in accordance with the parties usual course of business. As the innocent supplier of the trees, Huntsman should be made whole.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Huntsman Tree Supplier, Inc., against Greenway Nursery, Inc., in the amount of $4,000. DONE AND ENTERED this 12th day of April, 2016, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2016.
The Issue The issue in this case is whether Petitioner should be granted an exemption from disqualification from employment with a private contractor providing adult day training to developmentally disabled clients of Respondent.
Findings Of Fact From April 2016 to October 2016, Petitioner Bertha Delaney ("Delaney") was employed by Cypress Place, Inc. ("Cypress"), a private, nonprofit corporation that provides services to developmentally disabled clients, and operates under the regulatory jurisdiction, of Respondent Agency for Persons with Disabilities ("APD"). Delaney was hired by Cypress as a receptionist, and her responsibilities included answering the phones, handling clerical tasks such as maintaining attendance sheets and filing, and assisting other employees as needed. Cypress operates an adult day training program, which offers "adult day training services" to APD clients. Such services include "training services that take place in a nonresidential setting, separate from the home or facility in which the client resides, and are intended to support the participation of clients in daily, meaningful, and valued routines of the community. Such training may be provided in work-like settings that do not meet the definition of supported employment." § 393.063(1), Fla. Stat. There is no persuasive evidence showing that, during her employment with Cypress, Delaney ever had face-to-face contact with a client while performing adult day training services. She was not, therefore, a "direct service provider" as that term is defined in section 393.063(13), Florida Statutes. Delaney did, however, have incidental, in-person interactions with clients, the evidence establishes, occasionally assisting clients in need of immediate help. Thus, although Delaney did not provide training services to clients, she provided some services in the broader sense of "helpful acts." In early August of 2016, an incident involving a client occurred at Cypress's facility, which the Department of Children and Families ("DCF") investigated. In the course of the investigation, the DCF investigator interviewed Delaney and learned that, because the subject client had appeared to be limping on the day in question, Delaney had helped the client walk from the bus to the building. At the time, Delaney had not yet undergone level 2 background screening because Cypress had not instructed her to do so. Rather, in or around April 2016, when she was hired, Cypress had required Delaney to go to the police department for a local criminal background check, which she did. Delaney, in fact, did everything that Cypress asked her to do with regard to background screening. Soon after (and perhaps because of) the DCF investigation, Cypress directed Delaney to submit to a level 2 background review, which she did.1/ And so it happened that in late August 2016, a search of Delaney's criminal history was performed, and the results were forwarded to DCF, which administers the background screening process for APD. By letter dated October 3, 2016, DCF notified Delaney that it had discovered her criminal conviction on a charge of grand theft of the third degree, to which she had pleaded no contest on June 13, 2001. This crime is a "disqualifying offense" under the applicable screening standards, which means that Delaney is ineligible to work as a direct service provider without an exemption from such disqualification. DCF advised Delaney that she needed to quit her job at Cypress and obtain an exemption from disqualification if she wanted to resume working there. Delaney promptly resigned her position with Cypress. Delaney then sought an exemption from disqualification from employment, submitting her Request for Exemption to DCF in November 2016. By letter dated March 17, 2017, APD informed Delaney that it intended to deny her request based solely on the ground that Delaney had "not submitted clear and convincing evidence of [her] rehabilitation." In other words, APD determined as a matter of ultimate fact that Delaney was not rehabilitated, which meant (as a matter of law) that the head of the agency had no discretion to grant an exemption.2/ APD did not, as an alternative basis for its proposed agency action, articulate any rationale for denying the exemption notwithstanding a showing of rehabilitation, assuming arguendo that such had been made. Delaney initiated the instant proceeding, hoping to prove her rehabilitation. The undersigned has considered the evidence as it relates to the statutory criteria for assessing rehabilitation, and makes the following findings of fact as a predicate for the ultimate determination. The Circumstances Surrounding the Criminal Incident. In or around September of 2000, Delaney stole cash receipts from her employer, Blockbuster Video, totaling approximately $13,800.00. She was soon arrested and charged with grand theft of the third degree, a felony offense as defined in section 812.014, Florida Statutes. At the time of the offense, Delaney, then 25 years old, was experiencing financial difficulties raising two young daughters. Although married, Delaney managed the household mostly on her own, as her husband, an interstate truck driver, was often on the road. Exercising what she now acknowledges was poor judgment, Delaney stole her employer's funds to ease her personal financial burden. On June 13, 2001, appearing before the Circuit Court in and for the Eleventh Judicial Circuit of Florida, Delaney entered a plea of nolo contendere to the criminal charge, was convicted by plea (adjudication withheld), and was sentenced to two years' probation with orders to make restitution in the amount of $13,778.00 to Blockbuster. Delaney completed her term of probation and complied with all of the other conditions imposed by the court, including the payment of restitution. The Time Period That Has Elapsed since the Incident. The disqualifying offense was committed about 17 years ago. Delaney thus has had ample time to restore her reputation and usefulness to society as a law abiding citizen following her conviction, and to mature into an older, more responsible adult. The Nature of the Harm Caused to the Victim. Delaney did not cause personal injury to any person in the commission of her crime. She was ordered to make restitution to the victim, and did, although the details of this transaction are not available in the record. Therefore, the economic harm caused by Delaney's theft appears to have been minimal. The History of the Applicant since the Incident. Since her conviction, Delaney has completed a training program to become a patient care technician and obtained a license to practice in Florida as a certified nursing assistant. She has held positions in these fields and performed admirably. Delaney lives with her two adult daughters, son-in-law, grandson, and fiancé; her current family situation is stable, both emotionally and financially. Her civil rights have been restored. She has not reoffended or otherwise run afoul of the law. APD severely faults Delaney for a so-called nondisclosure in her response to a question on the exemption request form concerning previous employment. The form asks the applicant to "provide your employment history for the last three years." Delaney answered, in relevant part, by stating: "I have not been employed for the last three (3) years." She followed this statement by describing employment predating "the last three (3) years" and explaining that an ankle injury in May 2013 (which required multiple surgeries to repair), together with the attendant convalescence and rehabilitation, had kept her out of the workforce for a couple of years. APD argues that Delaney lied about her employment history——it is undisputed that she had, in fact, worked (for Cypress) during the three years preceding her request for an exemption——and that this alleged "lie" proves Delaney had known not only that she was required to undergo level 2 background screening before taking the job with Cypress, but also that such screening would reveal her disqualifying criminal conviction, and that, therefore, to avoid detection, she had worked without being screened, in knowing violation of law. Put aside for the moment the issue of fact regarding whether Delaney "lied" about her employment history. APD's argument (that this "lie" is proof of Delaney's knowing violation of the background screening law) is illogical. For even if (as a matter of fact3/) Delany were required to be screened, and even if (as a matter of law4/) the background screening statutes were personally violable by an applicant or employee, Delaney's allegedly fraudulent answer to the employment history question does not rationally lead to the conclusion that she knew either of these premises to be true. Moreover, as discussed in endnote 1, it is unacceptable for an agency to rely upon an applicant's alleged violation of a regulatory statute as grounds to deny an exemption request where such alleged violation has never been proved in an enforcement proceeding. This is because any person charged with committing a disciplinable offense must be served with an administrative complaint and afforded clear notice of the right to a hearing, at which, if timely requested, the agency must prove the alleged wrongdoing by clear and convincing evidence. APD wants to skip all that and just have the undersigned find here, for the first time, that Delaney clearly violated section 393.0655 by working at Cypress for at least six months without being screened. See Resp.'s PRO at 9. That's not happening. The only relevant finding in this regard, which the undersigned makes, is that Delaney has never been found to have violated section 393.0655 by working at Cypress for at least six months without being screened. As for the alleged "lie," APD's position that Delaney's response to the employment history question was knowingly and intentionally false (by omitting reference to Cypress) does not make sense, because DCF already knew (from investigating an unrelated matter) that Delaney had worked for Cypress, and Delaney knew that DCF was aware of this fact when she filled out the form. That cat was out of the bag. At hearing, Delaney testified credibly and convincingly that she had not intended to mislead DCF. It is clear that she interpreted the question as asking about her employment during the three years before the job from which she had been disqualified (as opposed to the three years before completing the exemption request form). She misunderstood the question, to be sure, but it was an honest mistake, and the undersigned can appreciate how a person in Delaney's shoes could conclude that the job from which one has recently been disqualified does not "count" towards her employment history for purposes of seeking an exemption from disqualification. Delaney's testimony in this regard is corroborated by the fact that she submitted to DCF, as part of her exemption request package, two letters of recommendation from employees of Cypress, written on Cypress letterhead, attesting to her good character. These letters, taken together, make it clear that Delaney had recently been an employee of Cypress. Obviously, if Delaney had intended, knowingly, to deceive DCF by concealing her employment with Cypress, she would not have provided these letters. APD argues that one of these letters, from Rashard Williams, which is dated October 27, 2016, does not specifically indicate that Delaney ever worked at Cypress——and thus does not bolster Delaney's testimony that she never intended to conceal the fact that she had. To reach this conclusion one must discount the writer's statement that "Ms. Delaney has proven herself to be reliable, trustworthy, and compassionate both as a person and as an employee." If the Williams letter were the only written recommendation from a Cypress employee, however, the undersigned would consider APD's interpretation to be, while certainly not the best or most reasonable, at least plausible in view of Mr. Williams's additional comments about how well Delaney took care of his grandmother in a capacity, apparently, other than as an employee of Cypress. But the companion to the Williams letter, a recommendation from Mark Chmiel dated October 24, 2016, leaves no room for doubt that Delaney was a recent employee of Cypress. A short, two-sentence excerpt suffices to support this finding: "Bertha is an invaluable addition to our agency [i.e., Cypress,] and she has fulfilled the potential of her position far better than anyone before her. Her moral character is beyond reproach and I have no qualms about trusting her with our clients."5/ The letters of recommendation that Delaney furnished DCF refute the notion that she knowingly omitted Cypress from her employment history with the intent to mislead DCF. They prove, instead, that Delaney took for granted DCF's knowledge of her work for Cypress, for she was certain DCF already knew about it. In turn, that foundational assumption (which, in fact, was true) prompted Delaney to provide a history of her employment during the several years leading up to the job with Cypress. The undersigned finds that Delaney is not guilty of knowingly withholding material information from DCF in response to the question about her previous employment. Finally, the undersigned observes that APD, in its preliminary decision-making, impermissibly allowed speculation and conjecture to take the place of facts. In forming its intent to deny Delaney's application, APD took into account the "possibility that Ms. Delaney was trying to protect Cypress Place from demonstrating that they were in violation of the screening laws" as well as the "possibility that Rashard Williams might have tried to hide the fact [sic6/] that there was a violation of the screening requirements by Cypress Place." Resp.'s PRO at 10 (emphasis added). On the basis of this rank speculation, APD conjectured that "Ms. Delaney was willing to collude with [Cypress employees] in order not to spotlight their violation of the licensing law." Resp.'s PRO at 18. APD proved none of this imaginative guesswork. Circumstances Showing Applicant Poses No Danger. Yvonne Ginsberg, the executive director of Cypress, testified in support of Delaney's application. Ms. Ginsberg stated that Delaney was an "excellent" employee and affirmed that she had "no qualms" about Delaney's returning to work at Cypress once an exemption has been secured. The undersigned credits Ms. Ginsberg's testimony as to Delaney's character. In addition, Delaney submitted the written character references of Messrs. Chmiel and Williams, which were discussed above. These documents credibly attest to Delaney's trustworthiness, integrity, and ethical behavior. The undersigned finds without hesitation that Delaney would likely not present a danger in the future if an exemption from disqualification were granted. Ultimate Factual Determination The undersigned has determined, based on clear and convincing evidence, including sufficient persuasive evidence of rehabilitation, that Delaney should not be disqualified from employment because she is, in fact, rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order granting Bertha Delaney the exemption from disqualification for which she is, in fact, eligible. DONE AND ENTERED this 18th day of August, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 18th day of August, 2017.
Findings Of Fact Petitioner is the Department of Professional Regulation. Respondent is Denfield Lionel Kirby, at all times pertinent to these proceedings holder of certified general contractor license CG-C024695, issued by Petitioner. His address of record is Miami, Florida. In 1985, Fitzgerald McCoy and his wife had plans prepared by an architect for construction of a second story addition to their home in Miami, Florida. On October 31, 1985, a building permit for construction was obtained in the name of McCoy's wife, who is the owner of the house. Commencement of construction was stymied because the McCoy's contractor of choice was unlicensed. They eventually met and began discussions with the Respondent. On April 16, 1986, Respondent prepared and signed an agreement with the wife, Gwendolyn G. McCoy. The agreement provided that Respondent would build the addition to the single family dwelling for a total sum of $57,048. Further, the agreement provided construction would be in accordance with the owner's previously drawn architectural plans as revised by an architect named Edna L. Mingo, an acquaintance of Respondent. Payment terms of the agreement provided Respondent would be paid one third of the total amount at the beginning of construction and one third when the roof to the addition was "dried in" and installation of windows completed. The final one third of the total contract amount would be paid to the Respondent upon the completion of the project. This payment schedule was abandoned by mutual parol agreement of the parties when, upon execution of the agreement, the McCoys were unable to provide the initial one third payment required by the contract to start construction. At that time, the parties orally agreed that Respondent would commence work on the project upon payment of $5,000 to him by Mr. and Ms. McCoy. They made this payment on April 16, 1986, the same date the written agreement was executed. Construction activities commenced shortly thereafter pursuant to the building permit previously issued in the name of Ms. McCoy. Respondent eventually had this permit transferred to his name in May, 1986. The McCoys continued to live in the residence while construction was in progress. During this time, Respondent generally appeared at the work site merely to ascertain if workmen were present. After making this check, he would leave. As the building process continued, extensive damage occurred to portions of the existing structure from rainwater which blew into the residence. On one occasion, the ceiling to the McCoy's bed room caved in on them. The water damage was the direct result of the Respondent's failure to provide adequate protection to the existing structure from rainstorms during construction of the second floor roof over a portion of the residence. At one point in the construction activity, workmen discovered the presence of termites in the rafters to the original roof of the McCoy dwelling. One of the rafters was replaced and the others were braced with new wood. After receipt of payments totalling approximately $35,233.19, the Respondent took a respite from the project. His departure, due to the inability of the McCoys to provide further construction funds at the time, occurred around August 15, 1986. Eventually, the McCoys acquired more funds and, on October 20, 1986, gave the Respondent a check for $20,000. After receipt of the $20,000 payment, the Respondent's workmen were involved in minimal activities on the site in October and December of 1986. Because of proximity to the Christmas season, both parties evidenced very clear recollections of activities on the job around December 15, 1986. At that time, the Respondent requested, and received, another check for $3,000 from the McCoys. He received another check for $1,500 on January 20, 1987. Work by Respondent on the McCoy project after receipt of this payment was sporadic and the relationship between the parties steadily deteriorated. By Respondent's own admission, it is established that his last expense payment or other involvement in the project occurred in May, 1987. During the process of construction, the McCoys wrote successive checks to Respondent in varying amounts which he accepted. Those checks and dates of issuance are as follows: May 2, 1986 $ 4,000 May 21, 1986 $11,000 June 11, 1986 $ 5,000 June 20, 1986 $ 5,000 August 26, 1986 $ 5,233.19 October 20, 1986 $20,000 December 15, 1986 $ 3,000 January 20, 1987 $ 1,500 Per stipulation of the parties at hearing, the foregoing amounts plus the original payment of $5,000 resulted in a grand total of payments to Respondent in the amount of $59,733.17. Respondent's request for the payments, and the McCoy's acquiescence in making them, constituted a continuing parol amendment of the payment terms and amount of the original contract. At time of hearing, a milieu of tasks required by the original agreement to be performed by the Respondent, inclusive of requirements set forth in the plans referenced in that document, either remained unaccomplished, or had been accomplished by the McCoys at additional expense with third parties. Among those tasks were: Installation of mirrors in bath rooms. Installation of wood base boards. Installation of closet rods and shelving. Installation of guard rail to the stairway. Painting of the house's interior and exterior. Completion of plastering of the bathrooms. Although the project was approximately eighty percent complete upon the cessation of all work, testimony of the Petitioner's expert, James Rodgers, establishes that much of the construction completed by Respondent's workmen was not in accordance with the requirements of the plans referenced in the agreement. Among such items are: Substitution of glass panes for glass blocks. Improper construction of the upper level overhang. Stairway risers are not uniform in height. All walls of the second floor addition are uneven and out of plumb. The bedroom floor in the northwest corner of the second floor slants excessively toward the northwest corner. Wood exterior paneling is slanted at a 10 degree angle instead of the required 45 degree angle. The stair landing is six inches less in width than required by plans. Further, the landing (5 ft. 10 in. x 2 ft. 6 in.) is dangerous in that it is supported with only one joist at each end, instead of one every 24 inches. The testimony of Petitioner's expert also established that an expenditure of approximately $51,205 would be required to simply repair or correct improper construction in order to have a final product which is in accordance with the plans referenced in the initial agreement. The McCoys paid certain expenditures for which Respondent, under terms of the agreement, was to have assumed financial responsibility. Included in these items are: Bathroom tiles. Plumbing expenses. Painting expenses. The record is devoid of any evidence that the Respondent conducted any examination of the existing structure prior to contracting with the McCoys or initiation of construction on the project. Further, by the Respondent's own admission, it is established that he did not see the plans referenced in the written contract between the parties until several weeks after the construction was initiated. He proceeded with construction activities on the basis of a "concept". Based on the demeanor of the Respondent, his testimony that the McCoys agreed to pay for "extras" resulting from the plans which were revised by Edna Mingo is not credited. The original written agreement between the Respondent and Ms. McCoy, executed on April 16, 1986, incorporated these revised plans. By his own admission, the Respondent had completed these "extras" before the middle of August of 1986. He did not discuss this problem with the McCoys until sometime between November of 1986 and January of 1987. The Respondent did not espouse a total cost amount attributable to the "extras" until the final hearing held in this cause. Further, Respondent's testimony that the McCoys agreed to pay additional costs resulting from the plans was not supported by testimony of any other witness. The plans, as revised by Edna Mingo, depicted existing centers in the ceiling of the original structure as being 12 inches apart, when, in reality, they were 28 inches apart. These centers were required, by the revised plans, to be extended in order to support the overhang of the second floor addition. The Respondent discovered the disparity regarding the spacing of centers in the course of construction, but he failed to correct the problem with the result that the overhang will eventually sag. At hearing, the Respondent confirmed that numerous punch list items had not been completed. He stated his willingness to have these tasks completed if the McCoys would allow entry to the premises for personnel performing these tasks.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding the Respondent guilty of the commission of gross negligence in the practice of contracting in violation of subsection 489.129 (1)(m), Florida Statutes. The penalty of permanent revocation suggested by the Petitioner is outside the maximum range set forth in subsection 21E-17.001 (19), Florida Administrative Code, and also appears overly harsh in view of the informal atmosphere which surrounded the contractual arrangements in this case. This is particularly so in view of the apparently previously unblemished record of the Respondent. The nature and extent of neglect in this case does, however, dictate imposition of a firm penalty. As required by subsections 21E-17.002(1) and (2), Florida Administrative Code, the aggravating circumstances in this situation, namely the additional cost to be endured by the owners to correct errors by the Respondent, justify the recommendation that the Respondent's license be suspended for a period of three years and that he be assessed an administrative penalty of $2,500. DONE AND RECOMMENDED this 28th day of April, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 28th day of April, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Petitioner's proposed findings consisted of 2 numbered paragraphs and 14 unnumbered paragraphs. Two of the unnumbered paragraphs have multiple numbered subdivisions. Numbers 3-14 have been applied to the unnumbered paragraphs and the numbered sub-paragraphs are redesignated with arabic letters. Included in finding number 2. Included in finding number 11. Included in part in findings numbered 4, 5, and 17. The remainder is rejected as unnecessary for the result reached. Included in findings 11 and 17. Rejected as unnecessary for the result reached. Included as to amount of pay in finding number 11. Remainder rejected as not supported by the weight of the evidence. There appears to be a typographical error in this proposed finding by Petitioner. As to an amount of $15,000 in extras claimed by the Respondent, this proposed finding is treated in finding number 18. Rejected as not necessary for the result reached. Rejected as not necessary. Included in finding number 18. Rejected as not necessary for the result reached. Rejected as unnecessary. Included in findings numbered 14 and 15. Included in finding number 14. a) rejected as unnecessary. rejected as unnecessary. included in finding number 7. rejected, these were not the Respondent's responsibility. included in finding number 19. included in finding number 14. rejected as redundant. Included in finding number 15. Included in part in finding number 20. Remainder rejected as redundant. RESPONDENT'S PROPOSED FINDINGS Included in finding number 2. Included in finding number 3. Included in finding number 3. Included in finding number 3. Included in finding number 3 and 4. Rejected as unnecessary to result reached. Included in finding number 4. Included in finding number 4. Included in part in finding number 17, Remainder Rejected as unnecessary. Rejected as unnecessary. Included in findings numbered 5 and 9. Included in finding number 5 as to permit transfer. Included in finding number 9. Rejected as unnecessary for the result reached. Included in finding number 9 as to payment amount, remainder rejected as unnecessary to result reached. Rejected as unnecessary. Included in finding number 11. Included in finding number 10. Included in finding number 11. Included in finding number 10. Rejected as unnecessary. Included in part in findings numbered 14 and 15. Included in finding number 20. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 R. Daniel Koppen, Esquire 700 Northeast 90th Street Miami, Florida 33138-3206 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 =================================================================
