The Issue The issues presented for determination are whether Florida Housing Finance Corporation’s determination that the three applicant-parties were eligible for the allocation of low-income housing tax credits; and its intended decision to award such tax credits to Ocean Breeze East Apartments, LLC, are contrary to governing statutes, rules, or the solicitation specifications.1/
Findings Of Fact Parties and Process Florida Housing is a public corporation and, for the purposes of these proceedings, is an agency of the State of Florida. Pursuant to section 420.5099, Florida Statutes, Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code and has the responsibility and authority to establish procedures for allocating and distributing low-income housing tax credits.3/ Florida Housing is authorized by law to allocate tax credits (and other funding) by means of requests for proposal or other forms of competitive solicitation. On October 6, 2017, Florida Housing published the RFA, starting the competitive application process being challenged in this proceeding. Completed applications were due December 28, 2017.4/ As explained below, all of the non-agency parties (HTG Heron, Channel Side, and Ocean Breeze) in this case applied for funding for a proposed development in Palm Beach County. According to the terms of the RFA, only one application for each county was to be funded. Moreover, the RFA’s stated goal was to fund one application wherein the applicant applied and qualified as a non-profit applicant. This non-profit goal did not apply within each of the six counties included in this RFA; one non-profit applicant in any of the six counties could satisfy the non-profit applicant goal for the entire RFA. No challenges were made to the terms or requirements of the RFA. HTG Heron is an applicant to the RFA, requesting an allocation of $1,541,751.00 in competitive tax credits. Its application, assigned number 2018-289C, was deemed eligible for consideration but was not selected for funding under the RFA. Channel Side is also an applicant to the RFA. It is requesting an allocation of $2,100,000.00 in competitive tax credits. Its application, assigned number 2018-278C, was deemed eligible for consideration but was not selected for funding under the RFA. Ocean Breeze is an applicant requesting an allocation of $2,070,000.00 in competitive tax credits. Its application, assigned number 2018-286C, was deemed eligible for consideration and was selected for funding under the RFA, subject to a credit underwriting review process. Florida Housing has adopted Florida Administrative Code Chapter 67-60 to govern the competitive solicitation process for several different programs, including the tax credit program. See § 420.507(48), Fla. Stat. The bid protest provisions of section 120.57(3) are adopted as part of the process for allocating tax credits, except that no bond is required. See Fla. Admin Code R. 67-60.009. A review committee was appointed to evaluate the applications and make recommendations to Florida Housing’s Board of Directors (the Board). Thirty-three applications for the RFA were received, processed, deemed eligible or ineligible, scored, and ranked, pursuant to the terms of the RFA; Florida Administrative Code Chapters 67-48 and 67-60; and applicable federal regulations. The review committee found 25 applications eligible and eight applications ineligible. Through the ranking and selection process outlined in the RFA, seven applications were recommended for funding, including Ocean Breeze. The review committee developed charts listing its eligibility and funding recommendations to be presented to the Board. On March 16, 2018, the Board met and considered the recommendations of the review committee for the RFA. The same day, the applicants to the RFA received notice of the Board’s determinations as to whether the applications were eligible or ineligible for consideration for funding, and which of the eligible applicants were selected for award of tax credits, subject to satisfactory completion of a credit underwriting process. Such notice was provided by the posting of two spreadsheets, one listing the “eligible” applications to the RFA and one identifying the applications which Florida Housing proposed to fund.5/ Relevant to this proceeding, Florida Housing announced its intention to award funding for Palm Beach County to Ocean Breeze, which received the maximum points available. Channel Side and HTG Heron were deemed eligible and scored the maximum number of points, but were not recommended for funding. Each applicant-party timely filed a Notice of Protest and Petition for Formal Administrative Proceedings. RFA The RFA contemplated a structure in which each applicant is scored on eligibility items and obtains points for other items. To determine if an application is eligible for funding, it must meet all of the requirements listed in section 5.A.1, of the RFA. The following eligibility terms and requirements are challenged in this proceeding: The evidence of control of the development site (site control) by Ocean Breeze and Channel Side; and The address of the development site provided by HTG Heron. For scoring the applications, the RFA allows up to a total of 20 points with the following point allocations: Submission of Principal Disclosure form stamped by Corporation as “Pre-Approved” (5 points); Development Experience Withdrawal Disincentive (5 points); and Local Government Contribution Points (5 points) or Local Government Area of Opportunity Points (10 points). As explained in pages 66-67 of the RFA, the first step in evaluating the applications is the sorting order. All eligible applications are ranked by first sorting all eligible applications from the highest score to the lowest score, with any scores that are tied separated in the following order: First, by the Application’s eligibility for the Proximity Funding Preference (which is outlined in Section Four A.5.e. of the RFA) with Applications that qualify for the preference listed above Applications that do not qualify for the preference; Next, by the Application’s eligibility for the Per Unit Construction Funding Preference which is outlined in Section Four A.11.e. of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); [sic] Next, by the Application’s eligibility for the Development Category Funding Preference which is outlined in Section Four A.4.b.(4) of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); [sic] Next, by the Application’s Leveraging Classification, applying the multipliers outlined in Item 3 of Exhibit C of the RFA (with Applications having the Classification of A listed above Applications having the Classification of B); [sic] Next, by the Application’s eligibility for the Florida Job Creation Funding Preference which is outlined in Item 4 of Exhibit C of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); and [sic] And finally, by lottery number, resulting in the lowest lottery number receiving preference. In other words, those competing for the RFA must first submit an application that meets all the eligibility criteria and does not have any significant omissions or errors before it is scored. After scoring, any tiebreakers are determined strictly by the luck of the draw. After applications are filed, but before they are scored, Florida Housing randomly assigned each a lottery number, and the highest scoring applicant with the lower number wins any ties, thus becoming the intended funding recipient. The notice of the intended award does not end the process, and the selection of an applicant for funding does not guarantee distribution of tax credits to that applicant. Florida Housing’s representative, Ms. Button, explained at the hearing: Q Okay. What happens once a preliminary agency action from Florida Housing becomes final agency action? A The awardees who are recommended or preliminarily approved for funding, once that becomes final, those applicants are then invited to credit underwriting by Florida Housing. * * * Q Can you provide some general information about credit underwriting? A Credit underwriting is essentially a de novo review of all the information that the applicant has provided in their application to proceed forward with the proposed development. Florida Housing retains their party underwriters who review that information and provide recommendations to Florida Housing. Similarly, the RFA provides that each selected awardee must complete a credit underwriting process before receiving funding or credits. The RFA states on page 68: Notwithstanding an award by the Board pursuant to his RFA, funding will be subject to a positive recommendation from the Credit Underwriter based on criteria outlined in the credit underwriting provisions in Rule Chapter 67-48, F.A.C. Rule 67-48.0072, in turn, provides in part: Credit underwriting is a de novo review of all information supplied, received or discovered during or after any competitive solicitation scoring and funding preference process, prior to the closing on funding, including the issuance of IRS Forms 8609 for Housing credits. The success of an Applicant in being selected for funding is not an indication that the Applicant will receive a positive recommendation from the Credit Underwriter or that the Development team’s experience, past performance or financial capacity is satisfactory. Thus, an application might fail in this de novo credit underwriting phase and never receive funding, even though it was “awarded” tax-credit funding as a result of a proceeding such as this one. In that event, page 67 of the RFA provides: 4. Returned Allocation Funding that becomes available after the Board takes action on the [Review] Committee’s recommendation(s), due to an Applicant withdrawing its Application, an Applicant declining its invitation to enter credit underwriting, or an Applicant’s inability to satisfy a requirement outlined in this RFA and/or Rule Chapter 67-48, F.A.C., will be distributed as approved by the Board. Therefore, if an intended applicant (such as Ocean Breeze), was nominally selected for funding at the end of the eligibility and scoring phase, but failed to garner a positive recommendation from the credit underwriting process, the next eligible applicants in the queue (such as HTG Heron and Channel Side) would be awarded the tax credits. As a result, in this consolidated proceeding, the objective of Petitioners is to displace any and all applicants in more favorable positions. Here, Petitioner Channel Side challenges the eligibility of both the Ocean Breeze and HTG Heron applications; and Petitioner HTG Heron challenges the eligibility of Ocean Breeze. Ocean Breeze, in turn, challenges both HTG Heron’s and Channel Side’s eligibility. The specific issues raised as to the three challenged applications will be discussed below. OCEAN BREEZE APPLICATION HTG Heron and Channel Side challenge Ocean Breeze’s eligibility based on the RFA requirements relating to site control. The parties have stipulated, and the undersigned finds, that site control must have been demonstrated as of the application deadline of December 28, 2017. The RFA provides three ways an applicant can demonstrate site control: (1) eligible contract, (2) deed or certificate of title, or (3) lease. Ocean Breeze utilized the first method to satisfy the site control requirement by submitting a document titled “Purchase and Development Agreement” (PDA) as Exhibit 8 to its Application. The PDA included two attachments: the “Legal Description” and a “Reverter Agreement.” Petitioners challenge the enforceability of the PDA on two apparent grounds: (1) it was not executed by the applicant6/; and (2) it was executed before the applicant was properly incorporated to do business within the State of Florida. The RFA, however, does not mention “enforceability” of a contract in its definition for “Eligible Contract.” The requirements for establishing site control though an eligible contract are found on page 30 through 31 of the RFA. Eligible Contract - For purposes of this RFA, an eligible contract is one that has a term that does not expire before June 30, 2018 or that contains extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than June 30, 2018; specifically states that the buyer’s remedy for default on the part of the seller includes or is specific performance; and the buyer MUST be the Applicant unless an assignment of the eligible contract which assigns all of the buyer’s rights, title and interests in the eligible contract to the Applicant, is provided. Any assignment must be signed by the assignor and the assignee. If the owner of the subject property is not a party to the eligible contract, all documents evidencing intermediate contracts, agreements, assignments, options, or conveyances of any kind between or among the owner, the Applicant, or other parties, must be provided, and, if a contract, must contain the following elements of an eligible contract: (a) have a term that does not expire before June 30, 2018 or contain extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than June 30, 2018, and (b) specifically state that the buyer’s remedy for default on the part of the seller includes or is specific performance. The initial paragraph of the PDA identifies the parties to the PDA as “Boyton Beach Community Redevelopment Agency,” as the “Seller,” and “Ocean Breeze East Apartments, LLC” as the “Purchaser.” Paragraph 14 of the PDA designates the following for purposes of notices: If to Purchaser: Ocean Breeze East Apartments, LLC Attn: Lewis Swezy 7735 NW 146 Street, Suite 306 Miami Lakes, FL 33016 Under the signature block, however, the PDA states it was executed on behalf of the “Purchaser” by “OCEAN BREEZE APARTMENTS LLC By Ocean Breeze East GP LLC” and signed by Lewis Swezy, “Title: Authorized Member” on December 8, 2017. “Ocean Breeze East, GP, LLC” does not exist and never has in Florida. The parties admit that this entity was not in existence on December 8, 2017, and was never subsequently formed. Ocean Breeze admits the identification of “Ocean Breeze East, GP, LLC” was in error. The PDA was executed on behalf of the “Seller” by BBCRA and signed by Steven B. Grant, “Title: Chair” on December 15, 2017. Paragraph 4 of the PDA indicates that its effective date is the date when the last party signed the PDA; in this case being the date the BBCRA executed the document--December 15, 2017. The Reverter Agreement is executed by the “Purchaser” “Ocean Breeze East Apartments, LLC” and signed by Lewis Swezy, “Title: Manager of Manager,” on December 12, 2017. The Reverter Agreement is executed by the “Seller,” BBCRA, and signed by Steven B. Grant, “Title: Chairman” on December 15, 2017. Mr. Swezy testified Ocean Breeze complied with all the terms of the PDA, including submitting an initial $25,000 deposit within two days of full execution of the PDA and a second deposit within 30 days. The Articles of Organization for Ocean Breeze East Apartments, LLC were filed on December 19, 2017, and effective December 14, 2017. Rachael Grice, Florida Housing Multifamily Programs Manager, scored the site control portion for this RFA based on the information in the application. Mrs. Grice found that Ocean Breeze met the RFA requirements for site control. It is unnecessary, and beyond the scope of the undersigned’s jurisdiction, to make a factual or legal determination as to the enforceability of the PDA. The RFA does not mention enforceability or validity as requirements for an “Eligible Contract” for site control purposes. There is no dispute that on its face, the PDA with the Reverter Agreement satisfied the RFA’s requirements for an “Eligible Contract” listed on page 30 and 31. In fact, as of the date of the application deadline the following was true: Ocean Breeze East Apartments, LLC, was listed as the applicant for the RFA. Ocean Breeze East Apartments, LLC, was listed as the “Purchaser” on the PDA. Mr. Swezy had signature authority to bind Ocean Breeze and was listed on the Ocean Breeze application as the “Authorized Representative.” Ocean Breeze East Apartments, LLC, and Mr. Swezy were identified in the notice provision in the PDA. The Reverter Agreement, which was signed after the PDA, correctly identified the applicant entity as Ocean Breeze East Apartments, LLC. Effective December 14, 2017, Ocean Breeze was incorporated. The PDA was fully executed on December 15, 2017. HTG Heron and Channel Side have not established that the PDA was fatally flawed or that Florida Housing erred in accepting the PDA as an “eligible contract” satisfying the RFA’s site control requirement. Even if the PDA contained errors by listing “Ocean Breeze East GP, LLC” in the signature block or was prematurely signed before Ocean Breeze was effectively incorporated, the evidence at the hearing established that it was a minor irregularity waivable by Florida Housing, and that Florida Housing would have waived any such errors. If the PDA is ultimately determined to be unenforceable and site control is not established at the credit underwriting stage, Petitioners would be next in line to be selected to receive the tax credits under the terms of the RFA. The preponderance of the evidence established that Ocean Breeze’s application is eligible for funding, it received the proper scoring, and should be the intended award for Palm Beach County. HTG HERON APPLICATION Channel Side and Ocean Breeze challenge the eligibility of the HTG Heron application because they claim it fails to satisfy the RFA eligibility requirement to provide a correct address of the proposed development site. Page 18 of the RFA requires in relevant part: Indicate (1) the address number, street name, and name of city, and/or (2) the street name, closest designated intersection, and either name of city or unincorporated area of county. Ms. Button testified the purpose of the address requirement in the RFA is to allow parties, including Florida Housing, to know where the proposed development will be built and to ensure the property has access to utility and other services. In that vein, the RFA does not require the street identified in an application to be a publicly maintained street. In its application, HTG Heron provided the address of the proposed development as “W 17th Ct., W 17th Ct. and North Congress Ave., Riviera Beach,” along with latitudinal and longitudinal coordinates of the development location. Ryan McKinless, Multifamily Programs Senior Analyst for Florida Housing, scored the development address section for this RFA. Mr. McKinless found that HTG Heron met the requirements in the RFA for providing an address of the proposed development. Here, Channel Side and Ocean Breeze argue Florida Housing erred in accepting the “W. 17th Ct.” address provided by HTG Heron because the address does not exist. They point to the site sketch submitted by HTG Heron in support of its application which references a “W. 17th Street” (not “W. 17th Ct.”) and has “W. 17th Street” intersecting with “Congress Avenue Extension,” (not “N. Congress Ave.”). In support of this position that “W. 17th Ct.” does not exist, Ocean Breeze and Channel Side also rely on a 1975 plat and a 1999 City of Rivera Beach Ordinance. The sketches attached to HTG Heron’s application each contain the disclaimer “NOT A SURVEY.” Although the sketches contain a reference to an abandonment relating to “W. 17th Ct.,” the 1999 Ordinance describing the abandonment relied on by Channel Side and Ocean Breeze was not submitted to Florida Housing. Regardless, this plat and ordinance information was not required by the RFA nor was it considered by Florida Housing in determining whether to accept the address submitted by HTG Heron for eligibility determination purposes. There was no evidence at the hearing that the “W. 17th Court” address misled Florida Housing (or anyone else) or caused confusion as to the location of HTG Heron’s proposed development. To the contrary, other information in the application supports accepting the provided address. The “Local Government Verification of Status of Site Plan Approval for Multifamily Developments” form executed by the City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The “Local Government Verification that Development is Consistent with Zoning and Land Use Regulations” form executed by the City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure- Electricity” form executed by an Associate Engineer from Florida Power and Light affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure” form for water and sewer services executed by a Utilities Engineer from City of Riviera Beach affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure- Roads” form executed by a City Engineer from the City of Riviera Beach affirms the “W. 17th Ct.” address. The “Local Government Verification of Contribution- Grant” form executed by the Interim City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The acting director of the City of Riviera Beach, Department of Community Development confirms by letter that the property at the “2003 W. 17th Court (adjacent to North Congress Avenue)” address is located with a “Qualified Census Tract for 2017 and 2018” and attaches a diagram of that tract. Documentation from the Palm Beach County Property Appraiser’s website lists the address location as “2003 W. 17th Ct.” Given that the purpose of providing an address was fulfilled and there was no ambiguity as to the actual location of the HTG Heron’s development site, Channel Side and Ocean Breeze failed to prove that Florida Housing erred in accepting HTG Heron’s address for the purposes of eligibility. At the hearing, HTG Heron also submitted a certified copy of a 2017 map from the Palm Beach County Property Appraiser’s Office for range 43, township 42, which includes the area of the proposed development in HTG Heron’s application, and indicates there is a “W. 17th Ct.” that intersects with “N. Congress Avenue.” There was a preponderance of evidence establishing HTG Heron’s designation in its application of “W 17th Ct., W 17th Ct. and North Congress Ave., Riviera Beach” was not an error, and that HTG Heron’s application is eligible for funding. CHANNEL SIDE APPLICATION7/ To satisfy the Site Control requirements Channel Side submitted a Purchase and Sale Agreement that lists among the sellers an entity named “MWCP, Inc., f/k/a Blueprint Properties, Inc., a Delaware corporation whose post office address is 248 Columbia Turnpike Florham Park, NJ (‘Blueprint’)” in the initial paragraph. MWCP, Inc. (MWCP) did not exist in Florida when the Purchase and Sale Agreement was executed. The parties stipulated that the reference in the Channel Side site control documents to MWCP was erroneous and that the owner of the property for the Channel Side’s proposed development as of the application deadline was a Delaware corporation known as Blueprint Properties, Inc., which has never operated as, or been corporately related to, MWCP. Rachel Grice, Florida Housing Multifamily Programs Manager, scored the Site control portion of this RFA based on the information in the Application. Mrs. Grice found that Channel Side met the RFA requirements for Site control. The RFA does not require the listing of related names of any corporations other than the applicant or developer. Thus, the error in the Purchase and Sale Agreement does not seem to affect Channel Side’s satisfaction of any requirement of the RFA. The error is insignificant and immaterial. There was no evidence presented at the hearing that Channel Side received a competitive advantage by identifying “MWCP, Inc. f/k/a Blueprint Properties, Inc.” instead of simply “Blueprint Properties” as the seller. The slight error conferred no competitive advantage on Channel Side; its application received no more points than it was entitled to by reason of the mistake. Ms. Button reasonably testified that had Florida Housing known about the mistaken listing of MWCP as the seller, it would have waived the error as a minor irregularity. The applicant-parties failed to prove that Channel Side’s application reflecting the “wrong corporate entity” as the seller was an error affecting eligibility of Channel Side’s application, or that Florida Housing erred in accepting the Purchase and Sale Agreement as proof of site control. The mistake was, at worst, a minor, inconsequential error that was waivable. Based on the preponderance of the evidence, Channel Side’s application is eligible for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order consistent with its initial decisions: (1) finding the applications of Ocean Breeze, HTG Heron, and Channel Side eligible for funding; (2) awarding the RFA Palm Beach County funding for the Ocean Breeze proposed development; and (3) dismissing the formal written protests of HTG Heron and Channel Side. DONE AND ENTERED this 29th day of June, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 29th day of June, 2018.
The Issue The issue in this case is whether J&K Enterprises of Lee County owes Petitioner money for sod.
Findings Of Fact On January 29, 1994, Petitioner invoiced Respondent J&K Enterprises for five loads of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $3139. On February 10, 1994, Petitioner invoiced Respondent J&K Enterprises for four loads of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $2776. On February 24, 1994, Petitioner invoiced Respondent J&K Enterprises for five loads of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $3946. On March 3, 1994, Petitioner invoiced Respondent J&K Enterprises for one load of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $736. On March 10, 1994, Petitioner invoiced Respondent J&K Enterprises for one load of Bermuda sod that Petitioner had sold and delivered to Respondent. Pursuant to the agreed-upon price, the amount of the invoice was $656. The total of the five invoices is $11,253. Respondent J&K Enterprises made the following payments on account: April 10, 1994--$1000; April 29, 1994--$1000; May 17, 1994--$1000; May 25, 1994--$1000; June 24, 1994-- $1000; September 23, 1994--$2000; October 21, 1994--$500; and December 15, 1994--$250. The total of the eight payments is $7750. Respondent J&K Enterprises still owes Petitioner the difference of $3,503. Despite repeated demands, Respondent refuses to pay the remaining balance. The parties agreed on the delivery tickets that Respondent J&K Enterprises would pay 18 percent on all unpaid balances after 30 days. Respondent has paid in full the first two invoices. Respondent paid all but $2111 of the third invoice, which balance began to earn interest on March 24, 1994. The fourth invoice of $736 began to earn interest on April 3, 1994, and the last invoice of $656 began to earn interest on April 10, 1994. Interest through March 1, 1995, on the February 24 invoice is $355.02 plus $1.04 per day thereafter. Interest through March 1, 1995, on the March 3 invoice is $120.38 plus $0.36 per day thereafter. Interest through March 1 on the March 10 invoice is $104.64 plus $0.32 per day thereafter.
Recommendation It is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order ordering J&K Enterprises of Lee County to pay the amount set forth above and, if said amount is not paid, ordering Preferred Mutual Insurance Company to pay said amount, up to its maximum liability on the bond. ENTERED on February 16, 1995, 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 February 16, 1995. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Larry Perkins Florida Sod of Hendry County, Inc. P.O. Box 159 LaBelle, FL 33935 J&K Enterprises of Lee County 2290 Bruner Lane Ft. Myers, FL 33912 Preferred Mutual Insurance Co. Legal Department P.O. Box 40-7003 Ft. Lauderdale, FL 33340-7003
The Issue Whether Respondent's sign located adjacent to the south right-of-way line of Plymouth Avenue, 315 feet east of the centerline of State Road 15A in Deland, Volusia County, Florida, is in violation as alleged in Petitioner's Notice To Show Cause No. 5-79-014-89 dated June 13, 1989.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Artdev Graphics Corporation, was the owner of a sign located near the intersection of Plymouth Avenue and SR 15A adjacent to the south right-of-way line of Plymouth Avenue, 315 feet east of the centerline of SR 15A, in Deland, Volusia County, Florida which is the subject matter of this proceeding. Respondent also owns a legally permitted sign adjacent to SR 15A which is 270 feet south of the sign referred to in paragraph 1 above when measured along the east right of way line of SR 15A. SR 15A is designated as a federal-aid primary highway. Plymouth Avenue is neither a federal-aid primary highway nor an interstate highway. The sign referred to in paragraph 1 above is visible from the "main- traveled way" of SR 15A as that term is defined in Section 479.01(8), Florida Statutes, respectively. There was insufficient evidence to show that the Department advised the Respondent, at any time, that a state outdoor advertising permit was not needed for the sign in question. The sign in question does not have a state outdoor advertising permit attached thereto nor has a state outdoor advertising permit been issued to Respondent for the sign in question.
Recommendation Based upon the foregoing Findings of Fact, the Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Florida Department of Transportation (Department) enter a final order requiring the Petitioner, Artdev Graphics Corporation, to remove the sign in question under the terms and conditions the Department deems appropriate and in accordance with law. DONE AND ENTERED this 12th day of December, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1.-2. Adopted in Finding of Fact 1, as modified. 3.-8. Adopted in Findings of Fact 3, 4, 1, 2, 5, and 7, respectively. 9. Rejected as not supported by substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by Respondent The Respondent elected not to submit any proposed findings of fact. COPIES FURNISHED: BEN WATTS, P. E., SECRETARY HAYDON BURNS BUILDING 605 SUWANNEE STREET TALLAHASSEE, FLORIDA 32399-0450 ATTN: ELEANOR F. TURNER, M.S. 58 CHARLES G. GARDNER, ESQUIRE HAYDON BURNS BUILDING 605 SUWANNEE STREET, M.S. 58 TALLAHASSEE, FLORIDA 32399-0458 ROBERT S. LEE, PRESIDENT ARTDEV GRAPHICS CORPORATION 409 NORTH SPRING GARDEN AVENUE DELAND, FLORIDA 32720
The Issue Whether Petitioner's applications for two outdoor advertising signs in Sumter County, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this permitting dispute, Petitioner, Rite Media Enterprises, Inc., seeks the issuance of two state sign permits from Respondent, Department of Transportation (DOT). In preliminary decisions dated August 24, 1998, DOT denied the applications on the ground the land owners had not given Petitioner permission to place the signs on their property. As an additional ground, DOT alleged that one sign violated the spacing requirements by being "[i]n conflict with a[n] existing permitted sign." Petitioner contends, however, that it has two legally enforceable leases with the property owners, and that its applications should be approved. If the applications are approved, the signs would be placed on two parcels of property near Interstate 75 in Sumter County, Florida, one on the east side and one on the west side of the highway. Both parcels are owned by Intervenors, William and Debra Farkus. On July 29, 1998, Dan Hucke, a real estate representative for Petitioner, was "scouting" for suitable billboard locations and decided that Intervenors' property would be a desirable location. After Hucke discussed the matter with Intervenors, the parties agreed to execute lease agreements that day for the two parcels of property in question. A copy of the lease agreements is found in Petitioner's Exhibits 1 and 2 received in evidence. In Hucke's presence, both Debra and William Farkus executed each lease agreement and a Notice of Lease. The documents reflect that only one person, Hucke, served as a witness. Hucke then carried the agreements to Petitioner's president, who executed the agreements on behalf of the corporation. In addition, Hucke's wife, a notary public, placed her seal on the Notice of Lease indicating that the signatures had been signed in her presence after an oath was administered to the lessors. Intervenors were not present when the documents were notarized. The day after the documents were executed, Debra Farkus contacted Hucke by telephone. Hucke told her he would be in the area the following Monday (August 2) and they could "work out" any problems she might have with the agreements. The same day (July 30), Debra Farkus faxed a handwritten letter to Hucke advising him to "[c]ancel the lease as per our conversation immediately," and to not "record them as per our conversation." After receiving the cancellation notice, Hucke met briefly with the Intervenors, but contended at hearing that he could not recall the substance of that conversation. On the other hand, William Farkus testified that in that meeting he again reiterated his desire for the agreements to be cancelled. In any event, Hucke acknowledged that he left the meeting with the impression that the Intervenors objected to the agreements. Despite receiving the foregoing notice and oral advice from Intervenors, Hucke nonetheless believed he had valid leases. Whether he recorded the leases is not of record. However, he promptly filed two applications for sign permits with the DOT, and he enclosed a copy of the lease agreements to evidence the fact that he had the permission of the property owners. When a DOT inspector conducted a preliminary investigation of the applications, he learned that Intervenors did not consent to having the signs on their property. Under long-standing DOT policy (since at least 1992), when this type of dispute occurs, which the inspector says happens "[a]ll the time," it requires that the applicant either submit an affidavit (or present testimony at a hearing) evidencing the fact that the property owners have consented to the placement of a sign on their property, or submit an order of a circuit court reflecting that the lease agreement is enforceable. Where a dispute such as this occurs, in no circumstance does DOT attempt to construe the legal sufficiency of a lease agreement or adjudicate the rights of a party under a lease agreement. The foregoing policy is applied by the agency on a statewide basis, without discretion, and it has a logical and rational basis, particularly since an administrative agency lacks jurisdiction to construe contracts or make property-right determinations. At the hearing, Intervenors again stated that they did not authorize Petitioner to place its signs on their property. In addition, Petitioner did not submit a court order indicating that enforceable leases between the parties existed. DOT presented testimony which established that the proposed sign location in Case No. 98-4459T would violate statutory spacing requirements because the location conflicted with an existing nearby sign. There was no evidence to contradict this assertion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order denying the applications for state sign permits filed by Petitioner. DONE AND ENTERED this 16th day of September, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1999. COPIES FURNISHED: Thomas F. Barry, Secretary Department of Transportation ATTN: James C. Myers, Clerk of Agency Proceedings 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Andrew B. Thomas, Esquire Post Office Box 4961 Orlando, Florida 32802-4961 Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Pamela S. Leslie, General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
The Issue Has Respondent Fancy Farms Sales, Inc. (Fancy Farms) made proper accounting to Petitioner Lonnie Pearce in accordance with Section 604.22(1), Florida Statutes, for agriculture products delivered to Fancy Farms from October 28, 1994, through December 10, 1994, by Lonnie Pearce to be handled by Fancy Farms as agent for Lonnie Pearce on a net return basis as defined in Section 604.15(4), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Lonnie Pearce was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statutes, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Fancy Farms was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes, as evidenced by license number 8453 issued by the Department, supported by bond number 57 92 20 in the amount of $75,000, written by Gulf Insurance Company with an inception date of September 1, 1994, and an expiration date of August 31, 1995. Beginning October 28, 1994, and continuing through December 10, 1994, Lonnie Pearce delivered certain quantities of an agricultural product (zucchini) to Fancy Farms. It is the accounting for these zucchini (zukes) that is in dispute. It was stipulated by the parties that Fancy Farms was acting as agent in the sale of the zukes delivered to Fancy Farms for the account of Lonnie Pearce on a net return basis. There is no dispute as the quantity or size of the zukes delivered by Lonnie Pearce to Fancy Farms during the above period of time. Furthermore, there is no dispute as to the charges made by Fancy Farms for handling the zukes, including but not limited to the commission charged by Fancy Farms. The agreed upon commission was ten per cent (10 percent) of the price received by Fancy Farms from its customers. There is no evidence that Fancy Farms found any problem with the quality of the zukes delivered to Fancy Farms by Lonnie Pearce during the above period of time. Upon delivering the zukes to Fancy Farms, Pearce was given a prenumbered receiving ticket showing Lonnie Pearce as Grower number 6 and containing the following additional information: (a) date and time of delivery; (b) produce number, i.e., 37 indicating fancy zukes and 38 indicating medium zukes; (c) description of the produce, i.e., zukes, fancy; (d) a lot number containing number of delivery ticket, grower number and produce number, i.e. 2074-6-37 and; (e) the number of units of zukes received by Fancy Farm. The accounting for the zukes from the following delivery receipt ticket numbers is being contested in this proceeding: (a) 2074 dated October 28, 1994, lot nos. 2074-6-37 and 2074-6-38; (b) 2078 dated October 31, 1994, lot nos. 2078-6-37 and 2078-6-38; (c) 2086 dated November 3, 1994, lot nos. 2086-6-37 and 2086-6-38; (d) 2103 dated November 4, 1994, lot nos. 2103-6-37 and 2103-6-38; (e) 2128 dated November 8, 1994, lot nos. 2128-6-37 and 2128-6-38; (f) 2144 dated November 10, 1994, lot nos. 2144-6-37 and 2144-6-38; (g) 2162 dated November 12, 1994, lot nos. 2162-6-37 and 2162-6-38; (h) 2180 dated November 15, 1994, lot nos. 2180-6-37 and 2180-6-38; (i) 2241 dated November 29, 1994, lot nos. 2241-6-37 and 2241-6-38; (j) 2253 dated December 1, 1994, lot nos. 2253-6- 37 and 2253-6-38; (k) 2266 dated December 3, 1994, lot nos. 2266-6-37 and 2266- 6-38; (l) 2290 dated December 7, 1994, lot nos. 2290-6-37 and 2290-6-38 and; (m) 2314 dated December 10, 1994, lot nos. 2314-6-37 and 2314-6-38. Once Fancy Farms found a customer for the zukes, Fancy Farms prepared a prenumbered billing invoice. Additionally, a bill of lading and load sheet was prepared and attached to the invoice. The bill of lading and load sheet would have the same number as the invoice. Basically, the invoice and bill of lading contained the customer's name and address, produce number, description of produce, number of units ordered, number of units shipped and the price per unit. The load sheet contains the customer's name, produce number, description of produce, units ordered, units shipped and the lot number for the units that made up the shipment. On numerous occasions Fancy Farms made adjustments to the selling price after the price had been quoted and accepted but before the invoice was prepared. Fancy Farms did not make any written notations in its records showing the adjustments to the price or the reasons for the adjustments to the price. Salvatore Toscano testified, and I find his testimony to be credible, that this usually occurred when there was a decrease in the market price after Fancy Farms made the original quote. Therefore, in order to keep the customer, Fancy Farms made an adjustment to the price. Pearce was never made aware of these price adjustments. In accounting for the zukes delivered by Pearce, Fancy Farms prepared a Grower's Statement which included the delivery receipt number, the date of delivery, the lot number, grower number, produce number, description of the produce, quantity (number of units), price per unit and total due. Payment for the zukes was made to Lonnie Pearce from these statements by Fancy Farms. On occasions payment was for only one delivery receipt while at other times payment was for several delivery receipts for different dates. Petitioner's exhibit 2 is the Florida Vegetable Report (Market Report), Volume XIV, Nos. 12, 13, 16, 17, 19, 21, 22, 23, 31, 33, 35, 37 and 40, dated October 28, 31, 1994, November 3, 4,8, 10, 14, 15, 29, 1994, and December 1, 5, 7, 12, 1994, respectively. The Market Report is a federal-state publication which reports the demand (moderate), market (steady), volume sold and prices paid for numerous vegetables, including zucchini, on a daily basis. The prices quoted for zucchini is for 1/2 and 5/9th bushel cartons and includes palletizing. The average cost for palletizing in the industry is 65 per carton. Fancy Farms receives and sells zukes in one-half (1/2) bushel cartons. Fancy Farms does not palletize the cartons for handling at its warehouse or for shipment. From October 28, 1994, through November 8, 1994, Pearce delivered a combined total of 431 units of fancy and medium zukes which included all lot numbers listed on delivery receipt ticket numbers 2074, 2078, 2086, 2103 and 2128. Pearce was paid $1,715.70 by Fancy Farms for those zukes as evidenced by Pearce's Grower Statement dated November 17, 1994 (Petitioner's exhibit 1). Fancy Farms sold this combined total of 431 units of zukes for $1,901.36 as evidenced by invoice nos. 3755, 3777, 3806 and 3814. The commission earned on these sales is $190.14 (0.10 x 1901.36 = 190.14). The amount owed by Pearce after deducting the amount paid by Fancy Farms ($1,715.70) and the commission ($190.14) is: $1,901.36 - $1,715.70 - $190.14 = -$4.48. The Market Report shows a much higher price being paid on the market for both fancy zukes (mostly $10.00 on 10/28/94 and mostly $8.00 on 10/31/94) and medium zukes (mostly $8.00 on 10/28/94) and mostly $6.00 on 10/31/94) than was allowed Pearce for zukes delivered on the same dates to Fancy Farms. However, the zukes delivered on October 28 & 31, 1994, were not sold by Fancy Farms until November 1, 1994. There is no Market Report for November 1, 1994, included in Petitioner's exhibit 2. The Market Reports for November 3, 4, 8 and 10, 1994, included in Petitioner's exhibit 2, show fancy zukes selling for $4.00 - $6.65 and medium zukes selling $2.25 - $4.65. The prices ($5.00 - $6.00 for fancy zukes and $3.50 to $4.14 for medium zukes) received by Fancy Farms for those zukes delivered to Fancy Farms by Pearce beginning October 28 through November 11, 1994, are in line with the Market Report. Therefore, the prices received by Fancy Farms have been used to calculate the amount due Pearce. From November 10, 1994, through November 15, 1994, Pearce delivered a combined total of 645 units of fancy and medium zukes to Fancy Farms which included delivery receipt ticket numbers 2144, 2162 and 2180. Pearce was paid $2,461.15 by Fancy Farms for those zukes as evidenced by the Grower Statement dated November 25, 1994 (Petitioner's exhibit 1). Fifty-three units of medium zukes on delivery receipt no. 2144 (lot no. 2144-6-38), 128 units of fancy zukes on delivery ticket 2162 (lot no. 2162-6-37), 30 units of medium zukes on delivery ticket no. 2180 (lot no. 2180-6-38) and 66 units of fancy zukes on delivery ticket no. 2180 (lot no. 2180-6-37) were not accounted for by invoice. Therefore, the price established in the Market Report of $5.00, $8.00, $6.00 and $8.00, respectively were used to calculate the amount owed Pearce for those zukes. The total amount calculated as owed to Pearce for the zukes represented by delivery receipt ticket nos. 2144, 2162 and 2180 is $3,513.00. The net difference due Pearce after deducting the amount paid to Pearce and the commission is: $3,513.00 - $2,461.15 - $351.30 = $700.55 On November 29, 1994, Pearce delivered 79 units of fancy zukes and 48 units of medium zukes for a combined total of 127 units and was paid $5.00 per unit for the fancy zukes and $3.00 per unit for the medium zukes for a total of $539.00. From invoice no. 3941 it appears that Fancy Farms made an adjustment for its customer in the price per unit for fancy zukes that was not reflected in the price per unit paid to Pearce. The price per unit of $5.00 for fancy zukes paid Pearce is more in line with the price established in the Market Report and is the price used to calculate the amount due Pearce. Invoice no. 3927 indicates that Fancy Farms was paid $3.00 per unit for medium zukes. Therefore, the amount due Pearce is: $5.00 per unit x 79 units = $ 395.00 $3.00 per unit x 48 units = $ 144.00 Total $ 539.00 Less: Ten per cent commission $ 53.90 Amount received by Pearce $ 539.00 Balance Owed by Pearce -$ 53.90 From December 1, 1994, through December 7, 1994, Pearce delivered 181 units of fancy zukes represented by lot nos. 2253-6-37, 2266-6-37 and 2290-6-37 and 160 units of medium zukes represented by lot nos. 2253-6-38, 2266-6-38 and 2290-6-38 for a combined total units of 341 units and was paid $1,385.00 for those zukes by Fancy Farms as evidenced by Pearce's Grower Statement dated December 15, 1994. The price per unit paid by Fancy Farms to Pearce was $5.00 fancy zukes and $3.00 for medium zukes. Other than 73 units of fancy zukes represented by lot no. 2253-6-37 which were billed out by Fancy Farms at $4.25 per unit, there was no evidence of the price per unit received by Fancy Farms for the balance of the fancy zukes and the medium zukes. On December 1, 1994, the Market Report shows the price per unit for fancy and medium zukes to be mostly $8.65 and mostly $6.65 per unit, respectively. Pearce should received a price of $4.25 per unit for 73 units of fancy zukes; $8.65 per unit for 30 units of fancy zukes and $6.65 per unit for 33 units of medium zukes delivered on December 1, 1994. The per unit price of $6.00 and $3.50 for fancy and medium zukes respectively, received by Fancy Farms as indicated on invoice nos. 3946 and 4049 falls within the per unit price reported in the Market Report for the dates of December 5 & 7, 1994. Therefore, Pearce should receive: $4.25 per unit x 73 units = $ 310.25 $8.65 per unit x 30 units = $ 259.50 $6.65 per unit x 33 units = $ 219.45 $6.00 per unit x 78 units = $ 468.00 $3.50 per unit x 127 units = $ 444.50 Total $1,701.70 Less: Ten percent commission $ 170.17 Amount received by Pearce $1,385.00 Amount owed Pearce $ 146.53 On December 10, 1994, Pearce delivered 39 units of medium zukes and 32 units of fancy zukes to Fancy Farms and was paid $3.50 per unit for medium zukes and $5.50 per unit for fancy zukes for a total $312.50 by Fancy Farms. There is no invoice or other evidence to show what Fancy Farms received for the above 71 units of zukes. However, the Market Report reflects that fancy zukes were selling mostly for $7.00 to $8.00 per unit and medium zukes were selling mostly for $6.00 per unit. Therefore, Pearce should receive: $7.50 per unit x 32 units = $ 240.00 $6.00 per unit x 39 units Total $ 474.00 = $ 234.00 Less: Ten percent commission $ 47.40 Amount received by Pearce $ 312.50 Amount owed Pearce $ 114.10 November 17, 1994 -$ 4.48 November 25, 1994 $ 700.55 December 7, 1994 -$(-53.90) December 15, 1994 $ 146.53 December 23, 1994 $ 114.10 SubTotal Less: Positive Adjustment/ $ 906.80 The net amount owed to Pearce by Fancy Farms: From Grower Statements dated: Grower Statement dated December 25, 1994. $ 127.00 Balance owed Pearce $ 779.80
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent Fancy Farms Sales, Inc. be ordered to pay Petitioner Lonnie Pearce the sum of $779.80. DONE AND ENTERED this 28th day of November, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, 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 28th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2559A The parties elected not to file any proposed findings of fact and conclusions of law. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 Lonnie Pearce 1676 CR 731 Venus, Florida James A. Crocker Qualified Representative Fancy Farms Sales, Inc. 1305 W. Dr. M. L. King, Jr., Blvd. Plant City, Florida 33564-9006 Gulf Insurance Company Legal Department 4600 Fuller Drive Irving, Texas 75038-6506
Findings Of Fact Petitioner Castelli originally applied for licensure as a physician in the state of Florida by application signed, notarized, and dated July of 1985. In conjunction with his application for licensure, Petitioner Castelli submitted a FLEX application that was signed and dated July 27, 1985. The 1985 application was accompanied by several documents, including Castelli's "Titulo" signed by him, dated September 15, 1972, and notarized by Norma Perez as a true and correct copy of the original. Petitioner Castelli was permitted by the Board of Medicine to take the December, 1985, FLEX, which Castelli did take and fail. By letter signed and dated August 30, 1986, Petitioner Castelli requested that he be allowed to re-take the FLEX examination in December of 1986. A notice dated October 15, 1986, was sent by the Board to the address provided by Castelli informing him that, among other things, he was required to complete a new application because his previous application was over one year old. Petitioner Castelli did not respond to that notification. On November 17, 1986, Petitioner Granado-Villar telephoned Respondent's employee Chandra Prine to inquire as to the status of her pending application to take the FLEX examination on December 5, 1986. Petitioner Granado-Villar was advised by Prine that her application was in order and that she should be receiving her admission card for the examination. Granado-Villar then asked Prine the status of the application of Petitioner Castelli. Prine told Granado- Villar that Castelli's application was incomplete because updated pages 2-5 had never been received and because no current ECFMG certificate was in his file. Prine further advised Granado-Villar that the deadline for applications for the December 5, 1986 FLEX examination had passed. In response to Granado-Villar's inquiries as to what could be done to help Castelli, Prine advised her that if his application file could be completed by 5:00 p.m. on November 18, 1986, Prine would discuss the matter with her supervisor and attempt to place Castelli's application on the agenda for the November 22, 1986 meeting of the Board of Medicine. Granado-Villar advised Prine that Castelli was a resident of Spain and that she would attempt to get an updated application form to Castelli by overnight mail. Prine told Granado-Villar to include copies of the receipts for overnight mail with Castelli's updated application. Petitioner Granado-Villar called Petitioner Castelli in Spain, and they decided to send the application to Castelli by commercial airlines in hopes of completing the round-trip in time to file it in the Board's office by 5:00 p.m. on November 18, 1986. During that conversation Castelli gave Granado-Villar the information she requested so that she could complete the updated application form for him. Granado-Villar typed some of the information on a photocopy of an application and subsequently filled in another portion by hand. Castelli advised Granado-Villar to write the name of Monserrat Compano, a former- stewardess for Iberia Airlines on the outside of the envelope so that the envelope might be accorded special treatment. Upon contacting Iberia Airlines, Granado-Villar discovered that there were no flights from Miami to Madrid on November 17 and that the only option was to utilize an Eastern Airlines flight from Miami to New York and then a connecting Iberia flight from New York to Madrid. Granado-Villar placed the updated application in a manila envelope bearing only the names of Monserrat Compano and Petitioner Castelli on the outside. She took the envelope to Carmen Rojas, an employee of Eastern Airlines and a friend of hers. She explained that the envelope must be placed on the Eastern flight leaving for New York at 1:00 p.m. on November 17 so that it could subsequently be placed on the Iberia flight from New York to Madrid. Rojas took the envelope to the flight crew for the Eastern flight to New York and gave it to one of the stewardesses, telling her to take the envelope and deliver it to the Iberia ticket counter at John F. Kennedy Airport in New York. Rojas gave the stewardess no instructions other than to simply leave the envelope at the Iberia ticket counter in New York. No arrangements were made by Rojas, Granado-Villar, or Castelli for getting the envelope from the Iberia ticket counter in New York to the Iberia flight to Madrid. During the morning of November 18 Petitioner Granado-Villar arranged for a delivery service to pick up an envelope from her at the hospital where she is employed and deliver it to Respondent in Tallahassee with specific directions that the envelope must be on the Piedmont Airlines flight leaving Miami for Tallahassee at 5:00 p.m. on November 18, 1986. Also on the morning of November 18 Petitioner Granado-Villar made arrangements with Erma Shockley, an employee at Miami Children's Hospital and a notary public, for Shockley to notarize Castelli's signature on his application later that day. On November 18, 1986, Petitioner Granado-Villar took to Shockley a completed application form. She told Shockley that the signature on the form was that of Petitioner Castelli and that Castelli had signed the application form on the previous day at the airport in Madrid. Although both Shockley and Granado-Villar knew that Castelli was not present, Shockley notarized the signature on Castelli's application. Further, Shockley and Granado-Villar decided that Shockley would date her notarization as having been done on November 17 in order that the date of the notarization would be consistent with the date of the signature. After the document was notarized, Petitioner Granado-Villar went to the emergency room area to await the arrival of the courier that she had previously arranged. The courier arrived within 5 to 10 minutes thereafter. Edna Evenson, a courier for Crown Courier Services, Inc., picked up an envelope containing an application for Petitioner Castelli from Petitioner Granado-Villar at Miami Children's Hospital, 6125 Southwest 31st Street in Miami on November 18, 1986. She gave Petitioner Granado-Villar a receipt for that package. Evenson subsequently delivered it to Piedmont Airlines at Miami International Airport at approximately 3:49 on November 18, 1986, for transport on Piedmont flight number 814 from Miami to Tallahassee, departing at 5:00 p.m. Piedmont's airbill, which corroborates the testimony of Evenson and the records of Crown Courier Services, Inc., shows that Piedmont received the package from Evenson for shipment on flight 814 to Tallahassee at 3:47 p.m. on November 18, 1986. On November 19, 1986, at 9:00 a.m., C. Prine signed a Sonicair receipt for a package containing Castelli's 1986 licensure application. The Sonicair shipping form contained information including the shipper's name--'D Granado-Villar"; the recipient--"Department of Professional Regulation"; the date"11/18/86"; a job number/bill of lading number "A58408"; original airport code-- "MIA" and destination airport code "THL." The spaces provided for commercial value and declared value are blank, and other than the time of receipt written by C. Prine, there is no time indicated on the Sonicair shipping form. The signature and designation "#10" for the shipper's signature and pickup agent on the Sonicair air shipping form were written by Edna Evenson, the courier for Crown Courier Services, Inc. Accompanying the application from Petitioner Castelli was a hand written letter dated 11/18/86 from Petitioner Granado-Villar. Petitioner Castelli's application bears a signature which was notarized by Erma M. Shockley in Dade County, Florida, with a date of November 17, 1986. The notarization states that the document was subscribed and sworn to before Shockley on the date of the notarization. On November 20, 1986, Petitioner Castelli was notified that he was required to make a personal appearance before the Board at its November 22, 1986 meeting in Tampa. He failed to appear. Petitioner Granado-Villar was also notified on November 20, 1986, that she was required to make a personal appearance on November 22, 1986, and she did appear. At the proceeding on November 22 Dorothy Faircloth, Executive Director of the Board, specified the concerns of the Board's staff regarding Petitioner Castelli's application. The staff questioned whether the application had actually been received in Spain and completed by Castelli and returned to Granado-Villar for delivery in Tallahassee in such a short timespan. It also appeared that the signature of Castelli on the application did not match his signature on previous applications and documents. The staff further questioned how the application could have been notarized in Dade County, Florida, while Castelli was in Spain. Petitioner Granado-Villar testified under oath at that proceeding that the application did make the trip from Miami to New York to Madrid to Miami to Tallahassee and that the signature on the application was that of Castelli. She admitted completing part of his application and arranging for a notary public who was very familiar with Castelli to notarize his application in Miami after she received it from Castelli who remained in Spain. Although Granado-Villar testified before the Board that Shockley was "well acquainted" with Castelli, it was established at the final hearing in this cause that Shockley and Castelli knew each other only incidentally. Some months earlier, Shockley notarized a copy of a document belonging to Castelli to be a true copy of the original, and they once passed each other in the hall at Miami Children's Hospital. Shockley had never before notarized Castelli's signature. Petitioner Granado-Villar's testimony before the Board and testimony at the final hearing is corroborated by that of Petitioner Castelli at the final hearing. According to them, on November 17, 1986 Castelli drove from Seville, Spain, to Madrid, Spain, where he found the envelope containing his application waiting for him at the Iberia ticket counter in the Madrid airport. He signed the application, placed it back in the envelope, and gave it to a passenger on Iberia flight number 965. He instructed that passenger to give the envelope to a woman whom he described (Petitioner Granado-Villar). He advised the passenger that if the woman were not there to meet her when she "cleared customs," then the passenger was to take the envelope to the Iberia ticket counter in Miami International Airport. Castelli later telephoned Granado-Villar to inform her that the application would be on Iberia flight number 956 or 965 arriving in Miami at 4:00 p.m. Granado-Villar left the hospital to go to the airport at approximately 3:30 p.m. arriving there at approximately 4:00 p.m. She went to the Iberia ticket counter where she picked up the envelope which now bore her name. She drove back to Miami Children's Hospital, parked her car, and went directly to Shockley's office arriving there between 4:20 and 4:30 p.m. She had Castelli's signature notarized. She then went to the emergency room area and waited approximately 5 to 10 minutes for Evenson to arrive. Evenson arrived at the hospital at approximately 4:40 p.m., completed the necessary paperwork, and left. The testimony recited in this finding of fact is specifically rejected as being incredible. According to flight arrival information maintained by the United States Customs Service, Iberia flight number 965 had a "block time" in Miami of 4:05 p.m. on November 18, 1986. Block time signifies the actual time that an aircraft comes to a complete halt at its arrival gate, and that time is provided to the Customs Service by the airlines as required by the United States Government. Although Petitioners presented evidence that Iberia Airlines recorded in the form of a telex its "official" block time to have been 3:55 p.m., Iberia Airlines' "official" block time is specifically rejected in favor of the block time it gave to the United States Government on the general declarations form required by law to be filed by it. It normally takes from 15 to 30 minutes for a passenger arriving on an international flight to "clear" the customs area at Miami International Airport. That time frame is extended by whatever time it takes for a passenger to disembark from an aircraft the size of an international flight and is also extended if the passenger is not an American citizen and must also go through immigration clearance. No evidence was offered as to how long it took a passenger arriving at approximately 4:00 p.m. on November 18, 1986, to clear customs. Keeping in mind the fact that it took Granado-Villar one-half an hour to drive from the hospital to the airport, it is physically impossible for Granado-Villar's and Costelli's version of the movement of that envelope containing his application to be true. Except for the testimony of Granado- Villar and Costelli there is no evidence to show that the application ever reached Castelli in Spain. Carmen Rojas only sent it to the Iberia ticket counter at Kennedy Airport in New York. Even if the application reached Castelli, it is impossible that Granado-Villar retrieved the envelope containing the application from the Iberia Airlines ticket counter at Miami International Airport at the same time that the Iberia aircraft was arriving at the gate. There is no evidence that the unknown passenger was the first person off the aircraft, that she hastened to be the first in line at customs, that she was able to clear customs without going through the immigration check point in the minimum time of 15 minutes, or that she hastened to wherever the Iberia ticket counter might be in relationship to customs in order to have left the envelope in the custody of the persons at the Iberia ticket counter in order that Granado-Villar could retrieve that envelope and be back at Miami Children's Hospital and in Shockley's office by 4:20 or 4:30 p.m. Even if it could have happened as Granado-Villar testified, Evenson could not have picked up the package at 4:40 p.m. accomplishing the one-half hour drive to the airport in order to check in the package at Piedmont in time for that package to have been placed on an airplane which left at 5:00 p.m. The application which was delivered to Piedmont Airlines for transmittal to Tallahassee by Evenson prior to the arrival in Miami of Iberia flight number 965 was not the same application as the one Granado-Villar sent to Castelli in Spain for his signature. The application which the Board received contained information regarding Castelli's medical education and surgical residency that conflicted with the application submitted by Castelli in 1985 and was incorrect. Even Castelli's height was reported to be different on those applications. In addition to containing incorrect information, the application submitted on behalf of Castelli in November of 1986 did not contain his signature and was not properly notarized. Petitioner Granado-Villar submitted a fraudulently prepared application on behalf of Castelli and attempted to perpetuate the subterfuge by her testimony before the Board and by her testimony at the final hearing in this cause. Petitioner Castelli participated fully in the submittal of his fraudulently prepared application to the Board. Even if an application had reached him in Spain for his signature at the airport in Madrid as he testified, that application was not notarized and it contained incorrect information at the time that he signed it.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Final Orders be entered denying the applications of Petitioner Guiseppe Castelli and of Petitioner Deise C. Granado-Villar for licensure by examination as physicians in the state of Florida. DONE AND RECOMMENDED this 22nd day of January, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 22nd day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-1594 and 87-2194 Petitioners' proposed findings of fact numbered 1-3, 11, and 15 have been adopted either verbatim or in substance in this Recommended Order. Petitioners' proposed findings of fact numbered 4-8, 10, 12, 13, 24, and 25 have been rejected as not being supported by the weight of the credible evidence. Petitioners' proposed findings of fact numbered 9, 14, 16, 18, 23, and 26 have been rejected as being contrary to the weight of the credible evidence in this cause. Petitioners' proposed finding of fact numbered 17 has been adopted either verbatim or in substance in this Recommended Order except for the third sentence contained therein which is rejected as being contrary to the weight of the credible evidence in this cause. Petitioners' proposed findings of fact numbered 19, 20, and 28 have been rejected as being irrelevant to the issues under consideration herein. Petitioners' proposed findings of fact numbered 21 and 29 have been rejected as being subordinate. Petitioners' proposed findings of fact numbered 22 and 27 have been rejected as not constituting findings of fact but rather as being either argument of counsel or mere recitations of the testimony. Respondent's proposed findings of fact numbered 1-34 have been adopted either in substance or verbatim in this Recommended Order. COPIES FURNISHED: Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Deborah J. Miller, Esquire One Biscayne Tower, Suite 2400 Two South Biscayne Boulevard Miami, Florida 33131 Allen R. Grossman, Esquire Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32399-1050 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Cecile M. Haake, has filed a claim against the bond in the amount of $398.00 alleging that Passport failed to perform on certain contracted services. On December 24, 1990, petitioner responded to a newspaper advertisement promoting a five-day, four-night cruise to the Bahamas for $199.00 per person. The advertisement was run by Travel Partners International (TPI), a telemarketeer selling travel certificates on behalf of Passport. Petitioner purchased a certificate authorizing two persons to take the cruise. For this, she paid $398.00. Shortly thereafter, petitioner received a package with a reservation request form. The form carried the name, address and telephone number of Passport. It should have contained an issue date and the name of the sponsor, but TPI erroneously left that information blank. Ordinarily, a certificate would expire one year after the issue date. Petitioner was not told this when she agreed to purchase the package. Around February 20, 1992, petitioner returned the reservation request form to Passport with a requested travel date of May 1, 1992. On February 26, 1992, Passport returned the form and advised petitioner that "your reservation form was not completed by your sponsor." She was told to have TPI complete the form, and resubmit it with her requested travel dates. By now, however, TPI had gone out of business. Petitioner accordingly filled in TPI's name in the space for the sponsor, and she inserted an issue date of March 15, 1991. This meant her certificate would expire on March 15, 1992, or less than a month later. She again returned the form to Passport. Since her requested travel dates were more than a year after the issue date, Passport declined to accept the reservation. Although in some cases Passport offered to extend certificates for an additional year for a $50.00 fee, there is no evidence that Passport did so in this case. When petitioner requested a refund of her money, Passport's successor corporation, Incentive International Travel, Inc. (Incentive), declined to issue a refund on the ground the package was purchased from TPI and not Passport, and Passport had never received any money from the telemarketeer. To date, petitioner has never received a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $398.00. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of January, 1995. COPIES FURNISHED: Cecile M. Haake 7254 Quail Meadow Road Charlotte, North Carolina 28210 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issues for determination in this case are whether Respondent is indebted to Petitioner for the purchase of agricultural products, and whether such indebtedness constitutes a breach of the conditions of the bond posted by the Surety for which payment should issue.
Findings Of Fact Petitioner, SARASOTA GROWERS INCORPORATED (SARASOTA GROWERS), is a producer of agricultural products, primarily nursery ornamental plants, in Sarasota County, Florida. W.R. Walden is president of SARASOTA GROWERS. Respondent, TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING (GULF BREEZE), is a licensed dealer in agricultural products, holding License Number 10091, issued by the Department of Agriculture and Consumer Services. At all material times, David Joy was the manager of GULF BREEZE. Co-Respondent and Surety, FRONTIER INSURANCE COMPANY OF NEW YORK (FRONTIER), posted Bond Number 5004806 in the amount of $9,999.00 in support of Respondent's license as a dealer in agricultural products. The inception date of the bond was April 30, 1996, and the expiration date of the bond was April 30, 1997. In early 1997, Respondent GULF BREEZE through its manager, David Joy, contacted SARASOTA GROWERS and ordered the delivery of certain agricultural products. By usual business practices, payment was demanded upon delivery. On February 10, 1997, SARASOTA GROWERS delivered agricultural products to GULF BREEZE. The invoiced value of the agricultural products delivered to GULF BREEZE was $2,255.00. On February 12, 1997, SARASOTA GROWERS delivered agricultural products valued at $302.50 to GULF BREEZE. On March 7, 1997, SARASOTA GROWERS delivered agricultural products valued at $18.00 to GULF BREEZE GULF BREEZE did not pay for the agricultural products at the time of delivery by SARASOTA GROWERS. At each of these deliveries, SARASOTA GROWERS was informed by an employee of GULF BREEZE that the manager David Joy, was not present, but that payment by check would be mailed. After the delivery of March 7, 1997, SARASOTA GROWERS ceased making deliveries to GULF BREEZE. After several demands for payment by SARASOTA GROWERS, GULF BREEZE remitted a partial payment of $1,000.00 for the agricultural products delivered by SARASOTA GROWERS. GULF BREEZE failed to properly make payment for agricultural products delivered by SARASOTA GROWERS and is indebted to SARASOTA GROWERS in the amount of $1,575.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered directing Respondent TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING, to pay Petitioner SARASOTA GROWERS INCORPORATED $1,575.50 for agricultural products sold to Respondent, and in the event Respondent fails to make such payment, within fifteen (15) days of that order, that the Surety be required to pay pursuant to the bond posted. DONE AND ENTERED this 14th day of November, 1997, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1997. COPIES FURNISHED: Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399 W. R. Walden, President Sarasota Growers, Incorporated 1001 Sinclair Drive Sarasota, Florida 34240 Toulia Xioutas, Incorporated Gulf Breeze Landscaping 901 MacEwen Drive Osprey, Florida 34229 Frontier Insurance Company of New York 195 Lake Louise Marie Road Rock Hill, New York 12775-8000
The Issue Whether the subject assessment of taxes, interest and penalties should be upheld.
Findings Of Fact By "Notice of Assessment and Jeopardy Findings" dated July 31, 1989, Respondent assessed Petitioner with taxes, interest, and penalties in the total amount, as of the date of the notice, of $161,724.75. This assessment was made pursuant to Section 212.0505, Florida Statutes, following an incident on February 4, 1988. The parties stipulated that this assessment was properly issued, that notice thereof was properly given to Gary Wayne Chitty, and that the mathematical calculations contained therein are accurate and correct. The following findings are made as to Petitioner, Gary Wayne Chitty, pursuant to the stipulation of the parties. His full name is Gary Wayne Chitty. His social security number is 261-17-0682. His date of birth is April 27, 1953. His present residence is 6840 S.W. 12th Street, Miami, Florida. He has never declared himself a citizen of any country other than the United States. On, or before, February 1988, he knew Rafael Silvio Pena. On February 4, 1988, he held a valid multi-engine pilot's license which was issued to him by the Federal Aviation Authority. On, or about February 4, 1988, he and Rafael Silvio Pena boarded and flew an aircraft designated N6726L. He and Mr. Pena planned to fly a multi-engine aircraft (N6726L) from a point outside of the United States and to enter the airspace of the United States near Cedar Key, Florida and travel within the airspace of Florida to Marathon, Florida. He filed, or caused to be filed, a flight plan for said trip with Mr. Pena in advance of the trip. He loaded or caused to be loaded marijuana on the aircraft (N6726L) prior to its departure. On, or about, February 4, 1988, he and Mr. Pena flew said airplane (N6726L) from a point in the vicinity of Cedar Key, Florida, to Marathon, Florida. During said flight, the aircraft made no other landings. During the entire flight on February 4, 1988, he and Mr. Pena were the sole occupants of said aircraft. During said flight he was the pilot of N6726L. He flew this aircraft on February 4, 1988 with the full knowledge and/or consent of the airplane's owners and/or official lessees. When he took off from the aircraft's departure point on February 4, 1988, it was loaded with a large quantity of marijuana. When he took control of said aircraft and took off, he knew it was loaded with said marijuana. He discussed his plans to transport the marijuana with Mr. Pena. When he took control of the aircraft, the aircraft (N6726L) contained nineteen (19) bales of marijuana which weighted six hundred ninety-nine (699) pounds. He and Mr. Pena flew this airplane along a course towards Marathon, Florida in a manner which took it over or near Lake Okeechobee, Florida. At a point along his route, he and/or Mr. Pena caused the bales of marijuana to be jettisoned from the aircraft. The marijuana was jettisoned as part of a conscious plan or design. The marijuana that was jettisoned from N6726L during its flight on February 4, 1988, weighed a total of 699 pounds. He did not know that during this flight of February 4, 1988, his aircraft was being observed by law enforcement officers. As part of his original plan, he piloted this aircraft to Marathon, Florida, where he landed. AA. During this entire flight the aircraft performed adequately and experienced no mech- anical difficulties. BB. Upon his landing at Marathon, he and Mr. Pena were arrested. CC. He knew the estimated retail value of the marijuana on board his aircraft (N6726L) was $600 per pound.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which upholds the subject Jeopardy Findings and Assessment. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of January, 1991. CLAUDE B. ARRINGTON 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 28th day of January, 1991. COPIES FURNISHED: James McAuley, Esquire Mark Aliff, Esquire Assistant Attorneys General Department of Revenue Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Mel Black, Esquire 2937 S.W. 27th Avenue Miami, Florida 33133 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahasseee, Florida 32399-0100 William D. Moore General Counsel 203 Carlton Building Tallahassee, Florida 32399-0100
