Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found. On January 15, 1980, Nick Pappas, a petroleum inspector with respondent's Division of Standards, took samples of regular and no lead gasoline from petitioner's station No. 582 located at 3130 Gulf to Bay Boulevard in Clearwater, Florida. An analysis of the samples was performed in the Tallahassee lab showing lead contents in the amount of 0.56 grams per gallon in the no lead gasoline sample. The standard for unleaded gasoline offered for sale in Florida is 0.05 gram of lead per gallon. A second sampling and analysis was performed approximately eleven days later because more gasoline had been dumped into the tank since the first sampling. Test results indicated essentially the same level of lead content in the unleaded gasoline. The respondent thereupon issued a "stop sale notice" on January 26, 1980, due to the high content of lead in the product. Tom Nestor, the station manager, was informed that he had several alternatives, including confiscation of the product, with the petitioner posting a bond in the amount of $1,000.00 for the release of the product to be sold as regular gasoline. Having elected this alternative, a "release notice or agreement" was entered into on January 28, 1980. Respondent received a bond in the amount of $1,000.00 from Petitioner, and this amount was deposited into the Gasoline Trust Fund. Tom Nestor admitted the truth of the above facts and admitted that he did not check the product after it was dumped into the tank. He stated that the driver of the delivery truck delivered the product to the wrong gasoline tank. According to Mr. Nestor, the tanks at his station were not properly marked at the time the delivery was made. The "premium" tank was being used to dispense "unleaded" gas, and the deliverer dumped "regular" gasoline into the "unleaded" tank.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioner's request for a return of the cash bond be DENIED. Respectfully submitted and entered this 28th day of July, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301
The Issue Whether Petitioner, Hendry Energy Services, LLC (“Hendry Energy”), is entitled to issuance of an operating permit recertification of the Red Cattle Co. #27-4 well, and an Oil and Gas Drilling Permit, Permit No. OG 0904AH.
Findings Of Fact Parties Hendry Energy is a Florida Limited Liability Company organized under the laws of the State of Florida. At all relevant times, Hendry Energy could lawfully conduct business in the State of Florida. The Department is the state agency with the authority under chapter 377, part I, Florida Statutes, to issue permits for the drilling for, exploring for, or production of oil, gas or other petroleum products which are to be extracted from below the surface of the land. Background Regarding the Mid-Felda Oil Field The Mid-Felda Field is an established oil field in Hendry County, Florida, discovered in 1977. The Mid-Felda Field generally exists within Sections 22, 23, 26, 27, 34, and 35 of Township 45 South, Range 28 East. The Mid-Felda Field includes three historically producing wells: RCC 27-4 (Permit No. 904), Red Cattle #27-1 (Permit No. 983), and Turner #26-3 (Permit No. 949). The RCC 27-4 was originally drilled and completed in 1977; the Turner #26-3 (“Turner 26-3”) was drilled and completed in 1979; and the Red Cattle #27-1 (“RC 27-1”) was drilled and completed in 1979. All three wells were vertical completions, meaning that the wellbore is vertical or nearly vertical from the surface- hole to the bottom-hole location. All three wells are located in routine drilling units. Routine drilling units are based on the U.S. Government Surveyed Township and Range system. The RCC 27-4 routine unit consists of the southeast quarter section of Section 27, Township 45 South, Range 28 East. The Turner 26-3 routine unit consists of the southwest quarter section of Section 26, Township 45 South, Range 28 East. The RCC 27-1 routine unit consists of the northeast quarter section of Section 27, Township 45 South, Range 28 East. RCC 27-4 is located approximately in the center of the southeast quarter section of Section 27. The true vertical depth of RCC 27-4 is approximately 11,686 feet. Turner 26-3 is located approximately in the center of the southwest quarter section of Section 26. The true vertical depth of Turner 26-3 is approximately 11,518 feet. Between 1978 and 2000, wells in the Mid-Felda Field produced nearly 1,500,000 barrels of oil. The RCC 27-4 and Turner 26-3 produced approximately 700,000 barrels each. The RCC 27-1 and Turner 26-3 have been plugged and abandoned. The RCC 27-4 has been temporarily abandoned with a plug installed. Facts Regarding Geophysical and Geological Data Supporting the Proposed New Bottom-Hole Location In 2013, Hendry Energy began engaging in production curve analysis of the existing wells in the Mid-Felda Field, conducted subsurface geological mapping of the Mid-Felda Field, and performed a 3D seismic survey of the Mid-Felda Field. Mr. Whitaker, a petroleum engineer, analyzed the historic production of the Mid-Felda Field, specifically production from the RCC 27-4 and the Turner 26-3 wells. This analysis was to determine whether there is additional recoverable oil that can be exploited from the Mid-Felda Field. Mr. Whitaker charted the field performance data as a graph of the production rate over time and the cumulative production versus the water to oil ratio. Using this analysis, he was able to determine that economically recoverable oil reserves likely remain in the Mid-Felda Field. Petroleum geologist Barry Falkner analyzed the subsurface geological data and developed reservoir maps for the Lower Sunniland C reservoir in the Mid-Felda Field. These maps depict the Top of Porosity, Average Permeability, and the Net Oil Pay Isopach, collectively describing the reservoir quality. Mr. Falkner also developed structural cross sections of the underground structure, on a north-south and east-west direction in the Mid-Felda Field. A 3D seismic study was conducted and analyzed by Charles Morrison, a petroleum geophysicist. The subsurface geological and geophysical seismic data revealed a structural high point at approximately 11,340 feet to 11,400 feet below ground level located on the section line between the southwest quarter of Section 26 (i.e., the routine drilling unit for the Turner 26-3 well, which was a producer) and the southeast quarter of Section 27 (i.e., the routine drilling unit for the RCC 27-4 well, which was a producer). RCC 27-4 and Turner 26-3 were drilled to depths of 11,686 feet and 11,518 feet respectively. These completion depths are both below the identified structural high point. As oil is produced, the water level in and around the well rises resulting in more water being produced and an increasing water-to-oil ratio. This phenomenon occurred in both RCC 27-4 and Turner 26-3 with the result that these wells are no longer economically productive. Accordingly, these two wells cannot extract oil reserves that may be present in the structure above their completion depths. A high point in the reservoir structure indicates a location where the presence of oil is likely. The geological and geophysical data indicate that the identified high point and point of thickness in the Sunniland C structure is a “closed contour,” which also indicates a trap of oil in the reservoir. The oil located at the top of a reservoir structure and above the completion depths of adjacent wells is also known as “attic oil.” Furthermore, a review of the subsurface geological data revealed a point of thickness in the reservoir structure as depicted on the map of the seismic data presented with net pay isopach for the Sunniland C structure. With the combined analysis of the field performance, the geophysical seismic interpretations, and the geological data, Hendry Energy identified the location of an optimal point in the subsurface structure from which Hendry Energy believes it can produce the most oil economically. This optimal point is located on the section line between the south halves of Section 26 and Section 27, between the existing RCC 27-4 and Turner 26-3 wells. Proposal to Reenter and Redrill Existing RCC 27-4 and Establish New Nonroutine Unit Based on the optimal extraction point identified through Hendry Energy’s geophysical and geological analysis of the Mid-Felda Field, Hendry Energy proposed to establish a new, nonroutine unit (consisting of the eastern half of the southeast quarter of Section 27 and the western half of the southwest quarter of Section 26), reenter the existing RCC 27-4 well, and drill a new horizontal well to the identified target bottom-hole location. Mr. Hancer, director of Hendry Petroleum, the parent company to Hendry Energy, testified that “[a]s a result of the studies that [Hendry Energy] conducted, the 3D seismic survey and the subsurface mapping and the production curve analysis, we discovered a structure that straddles the section lines between Sections 27 and 26, and we requested the establishment of a new drilling unit in order to be able to drill to that optimal bottom-hole location. And this application [Joint Exhibit 2] is a request for approval of that well.” The optimal target bottom-hole location cannot be reached by a routine, or statutory, drilling unit because of the setback requirements from section lines applicable to the bottom-hole location in routine units. See Fla. Admin. Code R. 62C-26.004(4)(a). However, establishing a nonroutine unit would allow Hendry Energy to access the target bottom-hole location. The proposed nonroutine unit is necessary to produce the “attic oil” that may exist at the proposed bottom-hole location. The identified optimal bottom-hole location is located approximately at the center of the proposed nonroutine unit, as required by section 377.25(3). Facts Regarding the Need to Horizontally Complete a New Bore to Access the Remaining Reserves from the Subsurface Structure To recover the remaining attic oil, Hendry Energy must hit a bottom-hole location at the top of the identified structure. A horizontal entry and a lateral completion of the well are required to economically drain the remaining attic oil reserves identified at this location in the Mid-Felda Field. The surface-hole location of the existing RCC 27-4 well is the optimal surface entry point to achieve a horizontal and lateral completion in the target bottom-hole location. Mr. Whitaker testified that “27-4 offers several different advantages, and we looked at this real closely, because, again, we’re all into – part of the exploitation effort is efficiency and that means capital efficiency and recovery efficiency. . . . And when you look at the geometry of where the wells sit and with the desired completion method, with the entry angle and then the lateral, 27-4 became the optimal point.” Facts Regarding the Drilling Application On April 12, 2016, Hendry Energy submitted an application for a permit to establish a new, nonroutine unit and drill a new horizontal well in the Mid-Felda Field in Hendry County, Florida (File No. 0904AH; PA No. 304674). By stipulation, except for the issue of preventing waste, the parties agree that Hendry Energy’s Oil and Gas Drilling Permit Application satisfies the criteria of chapter 377 and chapters 62C-26 through 62C-30, with regards to drilling a new oil well. Facts Regarding the Establishment of a Nonroutine Unit and the Prevention of Waste Rule 62C-26.004(6) provides: “The Department may grant drilling permits within shorter distances to adjacent drilling unit boundaries or on different drilling units than those prescribed in this rule whenever the Department determines that such steps are necessary to protect correlative rights or to prevent waste.” The terms “waste” and “physical waste” are statutorily defined as: The inefficient, excessive, or improper use or dissipation of reservoir energy; and the locating, spacing, drilling, equipping, operating, or producing of any oil or gas well or wells in a manner that results, or tends to result, in reducing the quantity of oil or gas ultimately to be stored or recovered from any pool in this state. The inefficient storing of oil; and the locating, spacing, drilling, equipping, operating, or producing of any oil or gas well or wells in a manner that causes, or tends to cause, unnecessary or excessive surface loss or destruction of oil or gas. The producing of oil or gas in a manner that causes unnecessary water channeling or coning. The operation of any oil well or wells with an inefficient gas-oil ratio. The drowning with water of any stratum or part thereof capable of producing oil or gas. The underground waste, however caused and whether or not defined. The creation of unnecessary fire hazards. The escape into the open air, from a well producing both oil and gas, of gas in excess of the amount that is necessary in the efficient drilling or operation of the well. The use of gas for the manufacture of carbon black. Permitting gas produced from a gas well to escape into the air. The abuse of the correlative rights and opportunities of each owner of oil and gas in a common reservoir due to nonuniform, disproportionate, and unratable withdrawals, causing undue drainage between tracts of land. § 377.19(31), Fla. Stat. The paragraphs of the definition specifically at issue were paragraphs (b), (f), and (k). Hendry Energy performed extensive geophysical and geological due diligence in the Mid-Felda Field to identify and assess the likelihood of finding producible quantities of oil in the field. As a result, Hendry Energy identified an optimal location in the subsurface structure of the Mid-Felda Field for exploiting oil reserves remaining in the field. This optimal target straddles the Section 26 and 27, Township 45 South, Range 28 East, section lines. Hendry Energy’s oil and gas drilling application proposes the establishment of a nonroutine drilling unit, consisting of 160 acres straddling Section 26 and 27. This proposed drilling unit consists of portions of two existing routine drilling units and wells, the RCC 27-4 and the Turner 26-3. Both wells previously produced oil in economic quantities until they were no longer economically viable. Hendry Energy’s application locates the nonroutine unit and the proposed bottom-hole at the optimal location for extracting any remaining oil. This is verified by the geophysical and geological analysis conducted. This target bottom-hole cannot be accessed from a routine drilling unit. As stated by Michael Whitaker, Hendry Energy’s expert in petroleum engineering, “[T]he statutory units as they exist today, even if we wanted to reactivate them, just physically don’t permit us to reach the target.” The drilling permit application proposes using existing surface infrastructure of the RCC 27-4 well. Using the existing surface-hole location and surface infrastructure of the RCC 27-4 well is the most efficient manner of draining the remaining reserves. The existing RCC 27-4 surface-hole is in the optimal location and provides the proper geometry for a lateral completion in the target bottom-hole. Not allowing the target bottom-hole location or attempting to drain the target point from another surface location would reduce the quantity of oil ultimately recovered and leave underground waste. Specifically, failure to authorize the permit for the well as proposed by Hendry Energy will prevent recovering the oil and thus leaving the oil underground without benefit to Hendry Energy or the mineral owners and other stakeholders. Mr. Hancer testified that a horizontal completion of the well allows the operator to more efficiently reach and drain oil from the underground structure. This increases the ultimate recovery and minimizes underground waste. Increased recovery equates to increased royalty payments. The remaining reserves are contained in an area that lies across the section lines of Section 26 and 27. The proposed nonroutine unit also lies across the section lines of Section 26 and 27. This proposed unit allows for a proportionate production of oil and therefore protects correlative rights. The proposed horizontal completion penetrates the structure in a way that encompasses portions of both Section 26 and 27, and therefore implicates the mineral owners in both sections. The proposed well will be draining the minerals of both parties, and thus paying royalties to both parties, creating a fair and equitable arrangement. Over 90 percent of the mineral rights in the proposed unit have been leased to Hendry Energy, evidencing the mineral owners’ desire to drain the reserves in the nonroutine unit. The greater weight of evidence supports that the nonroutine unit is necessary to prevent waste.
The Issue Whether the Respondent Five Brothers Produce owes the Petitioner $16,493.00 for green beans that Five Brothers Produce accepted, sold, and shipped to the buyer as the Petitioner’s agent/broker.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Five Brothers Produce accepts agricultural products from growers for sale or consignment and acts as an agent/broker for the growers. Currently, Five Brothers Produce represents 25 to 30 growers as agent/broker. Five Brothers Produce has a surety bond issued by Old Republic Surety Company to secure payment of sums owed to agricultural producers. Veggie Growers grows agricultural produce in fields located in Homestead, Florida. On or about April 28, 2009, a buyer employed by Five Brothers Produce examined Veggie Growers' crop of green beans in the field. He suggested that Veggie Growers pick the beans and deliver them to Five Brothers Produce for sale. On April 28, 2009, Veggie Growers delivered 796 boxes of hand-picked green beans to Five Brothers Produce. The beans were inspected and accepted for sale by an employee of Five Brothers Produce. The Marketing Agreement and Statement included on the Grower Receipt for the produce given to Veggie Growers by Five Brothers Produce provided in relevant part: The grower gives Five Brothers Produce the right to sell or consign to the general trade. No guarantees as to sales price are made and only the amounts actually received by Five Brothers Produce, less selling charges, cooler charges, and any other charges will be paid to the grower. Final settlement will be made within a reasonable length of time and may be held until payment is received from the purchaser. On April 29, 2009, Veggie Growers delivered 514 boxes of hand-picked green beans to Five Brothers Produce. The beans were inspected and accepted for sale by an employee of Five Brothers Produce. The Marketing Agreement and Statement included on the Grower Receipt for the produce delivered by Five Brothers Produce to Veggie Growers on April 29, 2010, included the same provision as quoted above. Veggie Growers received a picking advance of $3980.00 on the beans from Five Brothers Produce on April 28, 2010, and it delivered a total of 1310 boxes of green beans to Five Brothers Produce on April 28 and 29, 2009. The beans picked by Veggie Growers on April 28 and 29, 2009, were in good condition when they were picked, packed, and delivered to Five Brothers Produce. On April 29, 2009, Five Brothers Produce sold 50 crates of Veggie Growers’ beans to J. H. Harvey for $15.00 per crate. On April 30, 2009, Five Brothers Produce shipped the remaining 1260 crates of green beans received from Veggie Growers to Chenail Fruits et Legumes (“Chenail”) in Montreal, Quebec, Canada. In this shipment, Five Brothers Produce also included 84 crates of beans obtained from growers other than Veggie Growers, for a total of 1344 crates of green beans. The invoice issued by Five Brothers Produce reflecting the sale of 1344 boxes of green beans to Chenail identified the price of the beans as $11.50 per box, together with a Ryan recorder, which is used to measure the temperatures during transit, and pallets furnished by Five Brothers Produce, for a total due from Chenail of $16,671.50. Chenail received the shipment of beans at 11:30 on May 3, 2009, and requested an inspection at 5:32 on May 4, 2009, stating on the inspection request that it was “protesting the above described load due to poor condition on arrival.” Pursuant to the agreement between Chenail and Five Brothers Produce, a private inspection report was ordered, which was to include digital temperatures, “as conclusive evidence of the condition of this product noted upon arrival at destination.” The Certificate of Inspection indicated that the inspection report was completed at 7:00 on May 4, 2009, and that no decay was in evidence; that an average of 15 percent of the beans exhibited “dark green pepper spot discoloration ((resembling bruising) affecting materially the appearance),” with a range of six percent to 22 percent; that an average of two percent of the beans exhibited russeting; an average of seven percent of the beans were flabby, with a range of three percent to 12 percent; and that an average of four percent of the beans exhibited wind scars, with a range of one percent to 10 percent. The report also reflected that the bean crates were “in good order properly packed. Finally, the pulp temperature of the beans was noted in the report at 40 degrees Fahrenheit; the warehouse temperature was noted as 40 degrees; and the outside temperature was noted as 63 degrees. No temperature was noted for the vehicle in which the beans had been shipped, presumably because the beans had been off-loaded. A Commodity References form for beans was attached to the inspection report. It included information that the United States Department of Agriculture recommended storing snap beans at 40 to 45 degrees Fahrenheit; that the “standard grade tolerances” for defects in U.S. No. 1 snap beans is 13 percent total, “including 5 % serious including 1 % soft decay.” The Commodity References form also included information that, for a “[m]aximum percentage for a 5 day normal transit,” the “Suitable Shipping Condition/F.O.B. Good Delivery Guideline” for snap beans is 18 percent total, “including 8 % serious including 3 % decay.” The condition of the beans shipped by Five Brothers Produce exceeded the standard tolerances. The Commodity References form also indicated that, if the beans were held at a temperature cooler than 40 degrees Fahrenheit, there would have been evidence of decay in the form of surface pitting and russeting, with rusty brown specks, and the beans would “then become spotted and sticky when removed to warmer temperatures.” There was no indication on the Certificate of Inspection that the beans exhibited any of these features except that an average of two percent of the beans were russeted. Pursuant to these standards, Chenail properly considered the 1344 crates of beans shipped from Five Brothers Produce to be defective. Based on the results of the inspection report of the 1344 crates of beans, Chenail sent Five Brothers Produce a statement reflecting that it would remit to Five Brothers Produce a total of $1,275.70 U.S. The statement showed that Chenail paid nothing for 374 crates of beans; $6.00 Canadian per crate for 112 crates; $8.00 Canadian per crate for 336 crates; and $9.00 Canadian per crate for 522 crates. Based on these figures, Chenail calculated that the total gross amount due to be paid to Five Brothers Produce for the 1344 crates of beans was $6,446.40 U.S. Chenail then deducted $5,170.70 U.S. for inspection, pallets, recorder, transport, and warehousing costs and indicated it would remit to Five Brothers Produce a net total of $1275.70, or an average of $0.95 per crate of beans. Five Brothers Produce subsequently sent an invoice to Chenail for $1,491.20 U.S., or a average of $1.11 per crate, after deducting the charges Chenail had included for the pallets and the recorder, which had been furnished by Five Brothers Produce. Five Brothers Produce sent Veggie Growers a Grower Lot Status form showing the history of the 1310 crates of hand-picked “bush” beans it received from Veggie Growers on April 28 and 29, 2009. The form reflects the sale of 50 crates of beans to J. H. Harvey on April 29, 2009, at $15.00 per crate. It also reflects a price $0.95 per crate for the 1260 crates of Veggie Growers snap beans included in the shipment to Chenail, for a total sale amount of $1,458.09. Five Brothers Produce deducted from this amount a $50.00 loading fee and a $30.00 selling charge for the beans sold to J. H. Harvey and the $3,980.00 advance paid to Veggie Growers for the beans. Five Brothers Produce did not take a loading charge or a selling charge for the 1344 crates of beans sent to Chenail. According to the calculations of Five Brothers Produce, Veggie Growers had a net return of -$2,601.91 on the 1310 crates of beans. The market dictates how quickly Five Brothers Produce can sell the produce it accepts as agent/broker. In late April, snap beans generally do not sell quickly because there are a lot of beans available. Beans should be sold and shipped as soon as possible after picking. Snap beans will usually last only seven days from the date of picking. It normally takes two or three days for a shipment of produce to travel from Five Brothers Produce to Canada. Sometimes beans that are in good condition at the time they are shipped are not good enough to survive the trip to Canada. Summary The evidence presented by Veggie Growers is not sufficient to establish that it is entitled to any additional payment for the beans it delivered to Five Brothers Produce on April 28 and 29, 2009. Veggie Growers established that it picked the beans and delivered them to Five Brothers Produce at the suggestion of a representative of Five Brothers Produce, who inspected the beans in the field and found them acceptable, and that the beans were acceptable when delivered to Five Brothers Produce. Indeed, on April 29, 2009, when the final 514 crates of beans were delivered to Five Brothers Produce, Five Brothers Produce sold 50 crates for $15.00 per crate, establishing that the beans were of good quality when delivered. Nonetheless, there was no evidence presented to suggest that Five Brothers Produce did not use its best efforts to locate a buyer for the remaining 1260 crates of beans within a reasonable time after the beans were delivered, nor was any evidence presented to suggest that Five Brothers Produce did not properly store, load, and ship the beans to Chenail. The beans were shipped from Five Brothers Produce on April 30, 2009; the inspection report shows that the beans were properly packed; and there is no indication that the beans had been stored at an improper temperature.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the complaint of Veggie Growers, Inc., against Five Brothers Produce, Inc. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 29th day of July, 2010.
Findings Of Fact Arvin C. Moore was a registered real estate broker from January 3, 1977, and active firm member of Real Estate 3 Incorporated, a registered corporate broker with an address registered with the Petitioner Commission as Route 2, Box 59B, Chipley, Florida 32428. Prior to January 3, 1977, Alvin C. Moore was a registered real estate salesman, registered as of September 2, 1975. Regarding the allegations that Respondent Moore was an officer of American Universal Investment Corporation at the time he acted as broker in the Tew transaction, the evidence presented showed that Moore resigned as president of American on April 29, 1977. Negotiations with the purchaser Tew began in the summer of 1977, and the contract between American and Tew was entered into on or about July 20, 1977. Moore was made vice president of American on November 3, 1977, some time after Tew had advised that he did not wish to complete the purchase. The evidence shows that Moore advised Tew that the property in which Tew was interested was owned by members of his family. Whether the corporation was identified as a closely-held corporation is not relevant, because Moore had advised Tew of his potential personal interest in the transaction. Moore advised Tew, after Tew expressed an interest in the property, that he would see for what price his family would be willing to sell the property. Moore advised Tew that the family would sell eleven (11) acres for $9,900. The Administrative Complaint alleges that Moore told Tew that American's cost was $900 per acre, and that this was a misrepresentation concerning the facts of the sale. The evidence shows that the seller, White, received $36,000 from the sale of the property to American; however, American paid $4,000 in brokerage fees to Moore. American's cost was $40,000. The parcel contained approximately fifty-eight (58) acres, but this included approximately eight (B) acres of public roads. In addition some of the land was so low that it was not usable. Depending upon what cost and acreage figures were used, the price per acre varied from $620 to approximately $900 per acre. Moore was representing American in this transaction and, as a real estate broker, was permitted to present the property in its best light. Representing the purchase price as $900 is not a misrepresentation but mere puffing. Moore's sole duty to Tew was to deal at arm's length with him. No evidence exists that Moore did not deal at arm's length with Tew. Further, concerning the representations regarding the cost paid by American, it is noted that these representations are irrelevant to Tew's right to reject the tendered offer from American. No evidence was presented that Tew was induced into the contract by the representation that American paid $900 per acre for the property. American tendered a written contract to White on September 23, 1976, which was rejected. However, this contract became the basis for further negotiation which resulted in an oral contract for sale between American and White. It is difficult, if not impossible, to determine when this contract was consummated; however, negotiations of certain details continued until after the Tew/American contract was executed. These negotiations between American and White included an arrangement for White to transfer the the eleven (11) acre parcel which Tew was purchasing directly to Tew and convey the remainder to American, avoiding a dual transfer and dual taxation. The Complaint alleges that Moore misrepresented the contract to Tew because American did not have title to or an assignable interest in the property. The facts show that a contract did exist between White and American, and that White concurred in the transfer to Tew. Although this oral contract was not legally enforceable, as agent for American Moore was aware that the oral contract was sufficient for American and that American was acting in reliance on its oral contract with White in making on offer to Tew. The contract between American and Tew was a valid enforceable written contract notwithstanding whether American had or obtained title to the White property. Tew could have sued for damages if American had not obtained the property, or for specific performance had American acquired the property and refused to transfer it to Tew. Tew's interests were not jeopardized under the contract. Although Moore's duty to American is not at issue, Moore's duty did not extend to protecting American from its own acts. Moore had no duty to advise Tew that the oral contract for purchase was not enforceable. The evidence shows that Tew accepted the contract for purchase and sale for eleven (11) acres at $9,900 and was satisfied with this transaction until his sister-in-law advised him that one of White's agents had told her American had purchased the property for approximately $500 per acre. At this point, Tew sought to withdraw from the contract. This explains the origin of Tew's complaint against Moore and Tew's interest in the outcome, because the American/Tew contract contained a default clause. Clearly, Tew defaulted on the contract by refusing to go through with it when American stood ready to convey the property to him. Moore deposited the $1,000 deposit check he received from Tew to the escrow account of the Washington County Abstract Company, a title company located and doing business in the State of Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no formal action be taken against the Respondents, Arvin C. Moore and Real Estate 3 Incorporated. DONE and ORDERED this 10th day off October, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Russell A. Cole, Jr., Esquire 206 East Iowa Avenue Bonifay, Florida 32425
Findings Of Fact The following findings of fact are based upon the stipulation of the parties and the evidence presented: During a routine inspection on June 11, 1986 at Ron's Chevron #4, 1790 North Hercules, Clearwater, Florida, samples of all grades of gasoline were taken. A sample was taken from each side of a pump labeled "Chevron Unleaded". Using a field method for measuring lead content, it was determined that both samples contained more than 0.11 grams of lead per gallon, which exceeds the standard of 0.05 grams per gallon. The results of the field measurement were confirmed at the Department's main laboratory by Nancy Fischer on June 16, 1986. A stop sale notice was issued on June 12, 1986, and the contaminated product was withheld from sale to the public. On June 17, 1986, Petitioner was required to post a bond in the amount of $1,000 in lieu of the Department confiscating 5,850 gallons of fuel. The product was released for sale as Chevron Regular, a leaded fuel. New product was placed in the tank and proved lead free. Lead in gasoline is detrimental to a car designed to run on unleaded fuel. The lead can cause serious damage to the emission system and possibly the engine by stopping up the catalytic converter. The parties stipulated that the sole issue in this case is the amount of the bond. There is no evidence that Petitioner intentionally contaminated the fuel for financial gain. The cause appears to have been carelessness at some point between, or at, wholesale and retail. The Department accepted a bond of $1,000 and allowed Petitioner to retain the fuel for relabeling and sale as leaded fuel. The Department's penalty imposed in this case is consistent with its past practice in factually similar cases.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order requiring Petitioner to post a $1,000 refundable bond. DONE AND ENTERED this 23rd day of October 1986 in Tallahassee, Florida. DONALD D. CONN 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 23rd day of October 1986. COPIES FURNISHED: Ronald Trimm Ron's Chevron #4 1790 North Hercules Clearwater, Florida 33515 William C. Harris, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
Findings Of Fact On March 22, 1977 during a routine inspection of various service stations in Vero Beach, a sample of No. 2 diesel fuel was taken from the pump at English Brothers Truck Stop. Upon analysis at the mobile laboratory the sample was found to be below the minimum flash point for No. 2 diesel fuel and the inspector returned to the station the same day and issued a stop sale notice. (Exhibit 3). Three additional samples were taken, and when analyzed they too were found to be below minimum flash point for this type fuel. Upon receipt of the stop sale notice the station manager notified Respondent. After the fuel had been analyzed at the state laboratory Respondent was notified that since the retail value of the contaminated fuel exceeded $1,000 it could pay $1,000 in lieu of having the fuel confiscated. Respondent owns the fuel at English Brothers Truck Stop until such time as the fuel is removed through the pump for sale. Upon receipt of the notice of the contaminated fuel, which was in one 4,000 gallon tank, Respondent immediately sent three employees to remove the contaminated fuel and clean the tank. Thereafter Respondent attempted to locate the source of the contamination but without success. Since the flash point was lower than allowed for diesel fuel the most likely source of contamination was gasoline which is a higher priced fuel than diesel. Standards used by the Petitioner in determining the required characteristics of fuels are those prescribed by the ASTM. Respondent distributes some 750,000 gallons of diesel fuel per month and this is the first report of contamination of its fuel in the eight and one half years Respondent has been in business.
Findings Of Fact Since 1984, the Department has been the state agency charged with the responsibility to establish rules and regulate underground pollutant storage facilities in Florida. In 1988, the Legislature added the administration of the newly enacted Florida Petroleum Liability and Restoration Program to the Department's duties. The program was to be established on or before January 1, 1989. The Applicant is the owner of a petroleum storage system in Jacksonville, Florida. Since 1984, it has been subject to the rules regarding underground pollutant storage facilities promulgated by the Department. On September 18, 1989, an odor indicative of possible petroleum contamination was discovered at the site during the installation of monitoring wells. A Discharge Notification Form was sent to the Department by the Applicant on October 23, 1989. The form advised that there were no leaks in the system. It was suggested that the odor may have resulted from surface spill at the site over a number of years. In response to the notification, an inspection of the site was completed by the Department on December 5, 1989. The inspection revealed the following on-site violations: Registration requirements were not being met. The forms had not been updated to include the presence of monitoring wells and overfill protection at the facility. Two underground tanks had not been properly abandoned. Inventory and reconciliation records had not been properly maintained, as required by rule since 1987. This violation was reviewed, and discussed in detail with on-site representatives of the Applicant. The monitoring wells were not installed by the time deadlines set forth in the Department's rules regarding stationary tanks. Since the wells were installed in September 1989, samples had not been taken for visual signs of petroleum contamination. The purpose of the system is to allow the owner of the storage tanks to learn if there is a leak in the tanks that can be quickly controlled to limit contamination. The day after the inspection, the Applicant applied for a determination of eligibility for participation in the restoration coverage portion of the new Florida Petroleum Liability Insurance and Liability Program. An affidavit was signed stating that all of the Department's rules regarding stationary tanks were being complied with by the Applicant. Six days after the inspection, the Department sent the Applicant written notice of the results of the inspection. The Applicant was given time frames and instructions for correcting the listed violations that could be corrected. A contamination assessment and clean up were also required in the letter. This letter did not address the issue of eligibility for the restoration funding program because that was a matter unrelated to the inspection results. On March 7, 1990, the Department determined the facility was ineligible for participation in the restoration funding provided by the Florida Petroleum Liability and Coverage Program. The following reasons were given: Failure to properly abandon underground storage tanks, pursuant to Section 17-61.050(3)(c), Florida Administrative Code. Failure to maintain inventory records, reconciliations, and significant loss/gain investigation as per Section 17-61.050(4)(c), Florida Administrative Code. Failure to install monitoring system and overfill protection by the dates set forth in Section 17-61.06(2)(c)2, Florida Administrative Code. Failure to properly monitor leak detection system, pursuant to Section 17-61.050(5)(c), Florida Administrative Code. The 10,000 gallon fuel oil tank and the 3,000 gallon waste oil tank present at the facility were abandoned in March 1990. The notice issued by the Department after its inspection in December 1989, gave the Applicant sixty days after receipt of the notice to properly abandon the tanks. The Applicant substantially complied with this requirement after the written notice was received. Although the Applicant failed to maintain the inventory records, reconciliations, and significant loss/gain investigations required by the Department rules, some of these violations had been corrected prior to the Department's inspection in December 1989. Correct inventory recordkeeping was discussed during the inspection, and the need to immediately implement the proper recordkeeping practices was emphasized in the post-inspection notice of violations. All of the recordkeeping violations were not cured until August 1990. The records kept by the Applicant during the noncompliance period from 1984 to August 1990, did not provide a substantially equivalent degree of information regarding possible leak detection or prohibited discharges as the required recordkeeping procedures. Two underground stationary storage tanks on the site have been part of the Applicant's petroleum storage system since 1970 and 1975, respectively. The monitoring wells and overfill protection for these tanks should have been in place by December 31, 1987. Neither monitoring system was installed until September 1989. The Applicant began the contract negotiations for installation in September 1988. The Applicant did not demonstrate that the facility contained an alternative procedure between December 31, 1987 and September 1989, that provided a substantially equivalent degree of protection for the lands, surface waters, or groundwaters of the state as the established requirement for monitoring wells and overfill protection. In December 1989, the Department's notice advised the Applicant that the monitoring wells should be sampled monthly for visual signs of petroleum contamination. Since April 1990, the Applicant has been completing the monthly sampling in the monitoring wells as part of its leak detection system, as required by the Department's rule regarding underground stationary tanks.
Recommendation Accordingly, it is RECOMMENDED: That the Department enter a Final Order denying Petitioner's application for restoration coverage in the Florida Petroleum Liability and Restoration Program at the Jacksonville location. DONE and ENTERED this 28 day of December, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 _28_ day of December, 1990. APPENDIX TO RECOMMENDED ORDER The proposed findings of fact submitted by Petitioner are addressed as follows: Rejected. Improper interpretation of law. As for the facts in the first sentence, they are accepted. See HO #8. Rejected. Irrelevant. See HO #9. Rejected. Contrary to fact. See HO #9 and #11. Rejected. Contract to fact. See HO #11. Rejected. Contrary to fact. See HO #12 and #13. Rejected. Contrary to fact. Improper shifting of duty ad legal responsibility. Rejected . Improper application of law. The Respondent's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #5. Accepted. Accepted. See HO #4. Accepted. See HO #4. Accepted. Accepted. See HO #6. Accepted. See HO #4 and #6. Accepted. See HO #4 and #6. Accepted. Accepted. Accepted. See HO #4 and #9. Accepted. Accepted. See HO #4 and #9. Accepted. Accepted. See HO #9. Accepted. See HO #4 and #10. Accepted. Rejected. Contrary to fact. See HO #10. Accepted. Accepted. Accepted. See HO #10. Accepted. See HO #3 and #12. Accepted. Accepted. See HO #13. Accepted. Accepted. See HO #6. Accepted. See HO #4 and #6. Accepted. See HO #6. Accepted. Rejected. Not established by evidence. See HO #6. Accepted. Accepted. Accepted. Accepted. See HO #7. Accepted. Accepted. COPIES FURNISHED: William Chadeayne, Qualified Representative 8933 Western Way, Suite 16 Jacksonville, Florida 32256 Janet E. Bowman, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant matter, registered as a septic tank contractor with the Department. In July 2002, Respondent entered into a contract with Pro Gold Investments Corp. (Pro Gold), whose president and sole owner is Emerico Kemeny Fuller. The contract provided that Respondent would install a "new septic system" for Pro Gold at 453 Blue Road in Coral Gables, Florida (Blue Road Property) for $4,600.00, a job that should have taken only a "few days" to complete. Pro Gold gave Respondent a "job deposit" of $2,300.00. In July 2003, Pro Gold, by Warranty Deed, conveyed title to the Blue Road Property to Maurits de Blank's company, Mortgage Lending Company LLC (MLC), and it also executed a Bill of Sale, Absolute and Assignments of Contracts, which read as follows: PRO GOLD INVESTMENTS CORP, as Seller, in consideration of Ten Dollars ($10.00) and other valuable consideration paid to it by MORTGAGE LENDING COMPANY, LLC, as Buyer, the receipt of which is acknowledged hereby sells, assigns, grants, transfers, and conveys to Buyer all of Seller's right, title, and interest in the following described goods, contracts and personal property: SEE ATTACHED EXHIBIT "A- PROPERTY" AND EXHIBIT "B- CONTRACTS ASSIGNED" Seller covenants and agrees that it is the lawful owner of goods, contracts, rights or interests transferred hereby; that they are free from all encumbrances, except for outstanding amounts due, if any, to those parties set forth on Exhibit "B," and that it has the right to sell, transfer and assign the goods, properties and rights set forth in the attached Exhibit "A," and the right to transfer and assign the contracts, rights or interests shown on Exhibit "B," and will warrant and defend same against the lawful claims and demands or all persons. The "attached Exhibit 'A- Property'" read, in pertinent part, as follows: (Regarding transfer of 453 Blue Road, Coral Gables, Florida, "the Real Property") (Mortgage currently in favor of Mortgage Lending Company, LLC "the Mortgage") All property rights of any kind whatsoever, whether in property that is real, fixed, personal, mixed or otherwise and whether in property that is tangible or intangible, including, without limitation, all property rights in all property of any kind whatsoever that is owned or hereafter acquired by the Company and that is associated with, appurtenant to or used in the operation of the Real Property or is located on, at or upon the Real Property and is associated with or used in connection with or in operation of any business activity conducted on, at or upon the Real Property, and including, without limitation, the following: * * * All right, title, and interest in those certain contracts and agreements [set] forth in the attached Exhibit "B," which are hereby transferred and assigned to Mortgage Lending Company LLC. Among the "contracts and agreements [set] forth in the attached Exhibit 'B,'" was the aforementioned July 2002, contract wherein Respondent agreed to install a "new septic system" for Pro Gold on the Blue Road Property (Septic System Contract). This contract was still executory. Respondent had not done any work on the site in the year that had passed since the contract had been signed. In the beginning of August 2003, Mr. de Blank met with Respondent and advised him that MLC was the new owner of the Blue Road Property and that MLC had also received an assignment of the Septic System Contract from Pro Gold. In response to this advisement, Respondent stated "he did not do assignments." Following this meeting, Mr. de Blank sent Respondent documentation supporting the assertions he had made regarding MLC's ownership of the Blue Road Property and its having been assigned the Septic System Contract. Mr. de Blank then attempted, unsuccessfully, to make contact with Respondent by telephone. He "left messages," but his telephone calls were not returned. These efforts to telephonically communicate with Respondent having failed, Mr. de Blank "decided that it may make some sense to start a letter writing program." As part of that "program," on September 8, 2003, Mr. de Blank sent Respondent the following letter: Re: 453 Blue Road, Coral Gables As background, and in chronological order: Pro Gold Investments purchased the above cited property and obtained a construction loan from our firm. One of the conditions was that all construction contracts would be assignable to our firm in the event of default. Pro Gold Investments entered into contract with your firm to install a new septic tank and drainfield at 453 Blue Road. Pro Gold Investments defaults and forfeits title in lieu of foreclosure. The deed was recorded on August 4, 2003, at Bk/Pg: 21484/4283. Not recorded but attached for your reference is an assignment of contracts to include the contract Pro Gold Investments entered into with your firm. See further attachment. The original can be inspected in my office. At this point, I request you proceed with the work as soon as practical and under identical conditions as originally agreed with Pro Gold Investments. Please call me at . . . to confirm a start date. Mr. de Blank did not receive any response to his letter. He finally was able, however, to reach Respondent on the telephone. During this telephone conversation, Mr. de Blank made arrangements to meet Respondent at the Blue Road Property to discuss Respondent's doing the work Respondent had agreed to do in the Septic System Contract. This meeting between Mr. de Blank and Respondent took place on September 11, 2003. During the meeting, Mr. de Blank went over with Respondent "what the job [was] going to be." Although Respondent indicated that he was "going to put in th[e] septic tank" per the Septic System Contract, Mr. de Blank had his doubts that Respondent would be true to his word. Following the meeting, Mr. de Blank sent Respondent the following letter: Re: 453 Blue Road, Coral Gables We met today to discuss the above referenced job. My understanding is: You will start the job no later than the first week of October and will complete the job no later th[a]n the last week of October. I will obtain a copy of the approved permit. You indicated you will not need a survey.[1] Should you change you[r] mind, you can always refer to a survey I keep on site. You will have your insurance agent mail to my address a certificate of insurance. Though not discussed: I would like a partial release of payments made to date for the job. See further the attachment. Assuming you concur, then please send a signed and notarized copy to Maurits de Blank, Mortgage Lending Company, Post Office Box 430336, Miami, Florida 33143. Note that I prefer for various legal reasons that you use the release form as provided. Once the job has been started, I would like a list of firms supplying materials to the job. Notwithstanding that he had promised Mr. de Blank that he would "start the job no later than the first week of October," by the middle of October Respondent had yet to even "pull a septic tank construction permit from the City of Coral Gables" (that was needed before any on-site work could begin).2 In an attempt to find out from Respondent what was the cause of the delay, Mr. de Blank started a "calling campaign," but Respondent neither answered the telephone when Mr. de Blank called nor returned Mr. de Blank's calls. On October 19, 2003, Mr. de Blank sent the following letter to Respondent (by certified United States Mail, return receipt requested): Re: 453 Blue Road, Coral Gables I need a firm commitment when you will start and finish septic tank at above address. If you cannot perform the work, then I will need a refund of the deposit given to your firm. Please call to discuss. The end of the month was fast approaching, and Respondent had neither contacted Mr. de Blank nor begun the Septic System Contract on-site work. After paying a visit to Coral Gables City Hall and learning that Respondent had still not even "pull[ed] a septic tank construction permit from the City of Coral Gables," Mr. De Blank found another septic tank contractor, Westland Septic Tank Corp., to do the installation work for MLC that Respondent was contractually obligated to perform. MLC paid Westland $4,400.00 to do the work. Westland completed the job some time prior to November 4, 2003. The work passed all of the necessary inspections. Upon learning that MLC had contracted with Westland, Respondent sent Mr. de Blank a letter complaining that Mr. de Blank had not given Respondent an adequate opportunity to meet his obligations under the Septic System Contract. In the letter, Respondent offered to return only $500.00 of the $2,300 down payment he had received from Pro Gold. Mr. de Blank subsequently informed Respondent that this was not satisfactory and that he wanted the "full deposit back." He added that if he did not get it, he would "go to court." Not having received any portion of the "deposit back," Mr. de Blank, acting on behalf of MLC, in mid-November 2003, filed suit against Respondent in Miami-Dade County Court. On May 14, 2004, a Final Judgment was entered in Miami-Dade County Court Case No. 0313813 in favor of MLC and against Respondent "in the amount of $1,675.00 plus court costs in the amount of $121.00." As of the date of the final hearing in this case, Respondent had not made any payments to MLC. In view of the foregoing, it is found that Respondent abandoned for 30 consecutive days, without any apparent good cause, a project in which he was under contractual obligation to complete; and his failure to go forward with the project, combined with his failure to return any of the deposit he had received, caused monetary harm to a party to whom he was contractually obligated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Department issue a final order finding Respondent guilty of the misconduct alleged in the Administrative Complaint and disciplining him therefor by fining him $500.00 and suspending his registration for 90 days. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 4th day of February, 2005.
