Findings Of Fact The record reflects that notice was given to Respondent at its business address. The hearing was recessed for over 15 minutes to give Respondent added time to appear. Respondent has not contacted the Division as of the date of this Order. Yellow Whirleybird Helistop was issued an airport license renewal by the Department of Transportation, on March 11, 1987, for a private helistop located at latitude 30 degrees 11' 24" and longitude 85 degrees 49' 52" in Bay County, Panama City Beach, Florida. The service provided by this helistop is helicopter rides and it is located on property owned by Bay County, Florida. The City of Panama City Beach enacted a land use ordinance, No. 316, effective June 11, 1987, prohibiting the operation of sightseeing rotocraft "within the area bounded on the north by the southerly right-of-way U.S. Highway 98, alternate (Front Beach Road) and south Thomas Drive, and east and west by the easterly and westerly boundaries of the city, ---". The heliport in question is located within the area described above. The Office of the County Attorneys, Bay County, by letter dated July 22, 1987, notified Yellow Whirleybird Heli- copter, Inc. that the concession agreement it had with the county was terminated and gave Yellow Whirleybird 30 days to vacate the premises. The Department of Transportation, by letter dated June 25, 1987, notified Yellow Whirleybird Helistop that its airport license was being revoked because of lack of proper zoning at the site, due to Panama City Beach Ordinance No. 316. In addition, suitable local zoning and ownership or lease of the airport site are requirements of site approval and license by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the airport license located at latitude 30 degrees 11' 24" and longitude 85 degrees 49' 52" in Panama City Beach, Florida, issued to Whirleybird Helistop, Respondent, for a private helistop be revoked because it does not currently meet the zoning and lease requirements of the statute and rule. DONE AND ORDERED this 22nd day of December, 1987, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 December, 1987. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon-Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Mr. Ron Brown Whirleybird Helistop 430 Lyndell Panama City Beach, Florida 32407 Douglas J. Sale, Esquire City Attorney 110 South Arnold Road Panama City Beach, Florida 32407 Kay N. Henderson, P.E., Secretary Department of Transportation Haydon-Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact The findings of fact contained in the Hearing Officer's Recommended Order are supported by the evidence except the numerical designation for State Road "79" which should be "71", as noted on pages 5, 6, and 37 of the May 3, 1979, Hearing transcript, and the August 3, 1978 violation notice. As corrected, the findings of fact are attached hereto and made a part hereof, and supplemented by the following additional fact: As presented by exhibits and testimony by the Deputy District Engineer at the Sup- plementary Hearing on April 21, 1980, the section of Interstate 10, where the signs in question were noticed for violation, was open to traffic on October 14, 1977.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that no action be taken against the subject signs. DONE and ORDERED this 4th day of June, 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: Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 James P. Appleman, Esquire 206 Market Street Post Office Box 385 Marianna, Florida 32446 ================================================================= SECRETARY'S ORDER OF REMAND =================================================================
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, R. Jane Frazier, has filed a claim against the bond in the amount of $813.00 alleging that Passport failed to perform on certain contracted services. On June 4, 1990, petitioner purchased a travel certificate from Jet Set Travel, a Maryland telemarketeer authorized to sell travel certificates on behalf of Passport. The certificate entitled the holder to fourteen nights' accommodations in Hawaii plus roundtrip airfare for two persons, with all travel arrangements to be made by Passport. The certificate carried the name, address and logo of Passport. During petitioner's dealings with Passport's agent, it was represented to her that for $89.00 per night, she would receive a two bedroom, oceanfront condominium. This constituted a misrepresentation on the part of the agent since the rooms were actually more expensive. Relying on that representation, petitioner authorized a $328.00 charge on her credit card payable to Jet Set Travel to be used as a credit on services purchased in Hawaii. She also paid a $50.00 refundable deposit to Passport. In August 1990, petitioner contacted Passport regarding travel dates and was told the charge on her room would be $124.00 per night, and not $89.00 per night as promised by Jet Set Travel. In charging this amount, Passport relied upon its brochure which priced the accommodations in the range of $89.00 to $124.00 per night, with the highest price for the type of room selected by petitioner. Fearing that she would lose her $328.00 fee and $50.00 deposit if she did not pay the higher amount, petitioner reluctantly agreed to send a cashier's check in the amount of $1,406.00 to Passport, which represented fourteen nights' lodging at $124.00 per night. Finally, before she departed on the trip, petitioner was required to pay another $25.00 miscellaneous fee to Passport, the basis for which was never explained. When petitioner arrived in Hawaii on October 11, 1990, she discovered that her assigned accommodations for the first week at the Kona Reef were unavailable because Passport had failed to make a reservation. Accordingly, she was forced to purchase five nights accommodations at the Kona Reef for $524.02 plus two nights at another facility for $248.00. The accommodations for the second week were satisfactory. After petitioner brought this matter to the attention of Passport, she acknowledged that she received a refund check for the first seven nights' stay, although she says she can't remember if it was for all or part of her out-of- pocket costs. Passport's contention that its books reflect an entry that she was paid for the entire amount was not contradicted although neither party had a cancelled check to verify the actual amount of the payment. Passport's testimony is accepted as being the more credible on this issue. Because petitioner relied on a misrepresentation by Passport's agent as to the type and price of accommodations being offered, she is entitled to be reimbursed her $50.00 refundable deposit (which was never returned), the $25.00 miscellaneous fee paid on September 26, 1990, for which no justification was shown, and the difference between the originally agreed on price ($89.00 per night) and the actual price ($124.00) for the last seven nights accommodations, or $245.00. Accordingly, she is entitled to be paid $320.00 from the bond.
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, and he be paid $320.00 from the bond. DONE AND ENTERED this 13th day of December, 1994, 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 13th day of December, 1994. COPIES FURNISHED: R. Jane Frazier 3070 Meadow Lane Mobile, Alabama 36618-4634 Michael J. Panaggio 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 Whether or not Respondent, Sunnyboy Produce Co., Inc., is indebted to Petitioner for agricultural produce purchased.
Findings Of Fact Petitioner, Calvin Addison, d/b/a/ Calvin Addison & Sons, is an agricultural producer primarily engaged in the production of watermelons. Petitioner has been so engaged in excess of thirty (30) years. Respondent, Sunnyboy Produce Co., Inc. (herein Sunnyboy or Respondent Sunnyboy) is an agricultural dealer in Florida where it is engaged in the business of purchasing, receiving or soliciting from producers, watermelons for resale. Respondent Sunnyboy has been so engaged in excess of twenty years. During times material, Respondent Safeco Insurance Company of America issued a surety bond to Respondent Sunnyboy. Ricky Killman, Respondent's field manager purchased melons from Petitioner during May of 1992. The agreement to purchase melons between Petitioner and Respondent Sunnyboy was that the field buyer, Ricky Killman, would observe the melons in the field and an agreed upon price was reached in the field. Payment was to be made by Respondent to Petitioner within three days after they were sold which was usually at about the same time when Respondent Sunnyboy's trucks delivered the produce to Respondent's distribution centers in the Philadelphia, Pennsylvania area. In the normal case, Petitioner was paid on the basis of a manifest which denoted the agreed price. Of the first several loads to Respondent Sunnyboy, Petitioner was paid in full for the loads as invoiced. Later during the season, Sunnyboy started complaining about "trouble loads" and attempted to renegotiate the deal with Petitioner. Petitioner did not agree to modify his original agreement with Respondent Sunnyboy. However, Petitioner consigned to Respondent Sunnyboy two (2) loads of "pee wee" melons which were consigned on an "open price" basis. This fact is corroborated by Respondent's field buyer, Ricky Killman. Between May 18 and June 17, 1992, Petitioner received checks totalling $162,488.28 from Sunnyboy for melons sold during May 1992. Subsequent thereto, Respondent Sunnyboy attempted to pay Petitioner a partial payment of $8,100.55 and designated on its check "payment for final settlement of the 1992 south Florida watermelon deal." Petitioner objected to the partial payment although he subsequently cashed the $8,100.55 check designated as the final settlement on or about November 18, 1992 based on advice Petitioner received from a United States Department of Agricultural representative who initially reviewed Petitioner's complaint and who also advised that the instant claim would not be compromised if the check was cashed. At this time, Petitioner claims, based on this amended complaint, $20,529.01 based on the loads of watermelon sent to Respondent Sunnyboy between the dates of May 14 through May 29, 1992. 1/ Based on the parties agreement, Petitioner is entitled to be compensated by Respondent Sunnyboy or its surety for the amounts represented on the invoice of $20,529.01, as reflected by the amended complaint, minus the amounts claimed for the two loads of "pee wees" which were consigned. The net amount due to Petitioner is $13,623.93.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it RECOMMENDED that: The Department of Agricultural and Consumer Services issue a Final Order requiring that Respondent Sunnyboy pay Petitioner the amount of $20,529.01 less the total amount of $6,905.08 for two loads of "pee wee" melons which were consigned within 30 days of this final order. Additionally, in the event that Respondent Sunnyboy fails to timely remit to Petitioner the above-referred sum, that the Department collect said amount ($,13,623.93) from Respondent Safeco Insurance Co. of America, as surety for Respondent Sunnyboy and that that amount be timely remitted to Petitioner by the Department. DONE AND ENTERED this 28th day of May, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 May, 1993.
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
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 The issues in this case are whether Respondent discriminated against Petitioner on the basis of her sex or national origin in violation of 42 USCA Section 3604(a)(8) ("Section 8") and Sections 760.20(1)-(3), Florida Statutes (1997), by allegedly refusing to rent an apartment to Petitioner and by allegedly not renewing Petitioner's lease when it expired. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is a member of a protected class. Petitioner is a Hispanic female. Respondent rents dwelling units to the public at Ravens Crossing Apartments ("Ravens"). Ravens is located at 825 Ravens Circle, Altamonte Springs, Florida. Concord Management is located at 2200 Lucien Way, Suite 410, Maitland, Florida. Sometime in May 1996, Respondent applied for an apartment at Ravens. Respondent rejected the application. Petitioner subsequently returned to Ravens and submitted another application for an apartment. Respondent accepted the second application. Petitioner signed a written lease agreement with Respondent for the period August 1, 1996, through June 30, 1997. The written lease prohibited any additions or improvements to the lease premises without the "prior written consent of the manager." During the term of the lease, Petitioner violated the lease. Petitioner constructed an entry gate around the front of her apartment. Petitioner did not obtain the prior written consent of Respondent to construct the entry gate. Respondent never authorized or approved the gate. Petitioner constructed the entry gate to keep neighbors away from her front door. Petitioner testified that: from February 2, 1997, through April 29, 1997, a female neighbor named "Virginia" repeatedly knocked on Petitioner's front door for no reason; and another neighbor named "Robert" began knocking on her door on June 24, 1997, for no reason. Petitioner confronted both Virginia and Robert without result. Petitioner filed complaints with the Altamonte Springs Police Department on three different occasions. When the police department first investigated the matter, Petitioner identified two vehicles that Petitioner said belonged to the two neighbors who had been knocking on Petitioner's door. The investigating officer requested dispatch to identify the vehicle owners from the license plate of each vehicle. The owners of the vehicles were identified as Caucasion blond male and female. Petitioner had previously described the individuals who knocked on her door as a black female and a white male with balding, reddish hair. Petitioner testified that other neighbors repeatedly knocked on her door for no reason. One of those neighbors was identified by Petitioner as "Mrs. Toppel." Mrs. Toppel is a very old woman with emphysema. She weighs approximately 80 pounds and is barely able to walk. Petitioner occupied her apartment until her lease expired on June 30, 1997. Respondent gave timely notice to Petitioner that her lease would not be renewed. Petitioner vacated the premises and moved to Hollywood, Florida. On September 4, 1997, Petitioner filed her initial Complaint of Discrimination with the Commission. The Complaint alleged that Respondent discriminated against Petitioner by denying her application for an apartment in May 1996, by fostering harassment of Petitioner by her neighbors, and by failing to renew Petitioner's lease. The Commission investigated the Complaint. On June 26, 1998, the Commission determined there was "No Reasonable Cause" to support allegations of discrimination. On July 20, 1998, Petitioner filed a Petition for Relief. The Petition contained the same allegations as those in the Complaint. The Commission referred the matter to the Division of Administrative Hearings. The undersigned conducted a hearing on December 1, 1998. Petitioner presented her case and rested. Respondent cross-examined Petitioner and Petitioner's witness.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order dismissing Petitioner's Petition For Relief for failure to establish a prima facie case of discrimination. DONE AND ENTERED this 3rd day of February, 1999, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1999. COPIES FURNISHED: Bill McCabe, Esquire Shepherd, McCabe and Colley Suite 200 1450 State Road 434 West Longwood, Florida 32750 Lydia Cortes Apartment 21 1400 North 17th Avenue Hollywood, Florida 33020 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commision 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Does Respondent Sanford Produce Exchange, Incorporated (Sanford), owe Petitioner for agricultural products purchased by Sanford from Petitioner between April 1, 1997, and April 25, 1997?
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, Petitioner 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, Sanford was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes. Sanford was issued license number 9434 by the Department, which is supported by bond number 957712 20250566 in the amount of $31,000, written by Auto Owners, as surety, with an inception date of October 25, 1996, and an expiration date of October 24, 1997. The Complaint was timely filed by Petitioner in accordance with Section 604.21(1), Florida Statutes. Beginning April 1, 1997, and ending on April 25, 1997, Sanford ordered and agreed to pay for the following agricultural products from Petitioner, which Petitioner shipped by truck to Sanford: Date Item Quantity Price Total 4/1/97 Green Cabbage 100 $ 4.50 $ 450.00 4/1/97 Green Cabbage Bags 325 $ 3.50 $1,137.50 4/2/97 Green Cabbage 125 $ 4.50 $ 562.50 4/2/97 Green Cabbage Bags 100 $ 3.50 $ 350.00 4/17/97 Green Cabbage Bags 226 $ 3.00 $ 678.00 4/17/97 Medium Green Squash 77 $12.35 $ 950.95 4/18/97 Yellow Crookneck Squash 40 $ 5.00 $ 200.00 Fancy Yellow Squash 110 $ 8.35 $ 918.50 Medium Yellow Squash 40 $ 6.35 $ 254.00 Fancy Zucchini 79 $12.35 $ 975.65 Medium Zucchini 40 $10.35 $ 414.00 4/25/97 Yellow Crookneck Squash 40 $ 8.35 $ 334.00 Number 1 Yellow Crookneck Squash 120 $ 5.35 $ 642.00 Number 2 Fancy Zucchini 80 $ 6.35 $ 508.00 Medium Zucchini 50 $ 4.35 $ 217.50 4/25/97 Fancy Zucchini 92 $ 6.35 $ 584.20 Total $9,176.80 The above shipments are represented by invoice numbers 07987, 07991, 07772, 07773, 07785, 07896, and 07802, respectively. Petitioner has billed Sanford for the amount of $9,176.80, which Sanford has failed to pay. The cabbage, squash, and zucchini shipped to Sanford between April 1, 1997, and April 25, 1997, by Petitioner was of the quality purchased by Sanford and was in good condition when shipped.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding that Sanford Produce Exchange, Incorporated, owes Fresh Pride Sales, Incorporated, the sum of $9,176.80. DONE AND ENTERED this 14th day of January, 1998, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1998. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza 10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32299-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0810 Troy Cobb Qualified Representative Fresh Pride Sales, Incorporated Post Office Box 577 Wauchula, Florida 33873 Anthony L. Thomas, President Sanford Produce Exchange, Incorporated 6060 Hensel Road Port Orange, Florida 32119 F. J. Manuel, Jr., Esquire Sears and Manuel, P.A. 511 North Ferncreek Avenue Orlando, Florida 32803
