Findings Of Fact The Respondent, Robert J. Filer, is a certified general contractor, holding license number CG C002063 and license number CG CA02863 issued by the Construction Industry Licensing Board. The Respondent is also licensed as an architect in the State of Florida, but the charges in the Administrative Complaint are not directed to his license to practice architecture. During the year 1978 a real estate project known as Silver Woods began to build houses in Palm Beach County. This project was a development of Silver Woods, Ltd., a limited partnership. The objective was the construction and sale of 60 homes. The Respondent was hired pursuant to an oral agreement to design the houses, 1/ review shop drawings, secure building permits, inspect the houses, and execute certain bank documents and permit applications. The Respondent pulled the building permits in the name of Sun State Enterprises, a company owned entirely by him, although Sun State Enterprises was not connected with the Silver Woods project. Building permits were pulled in this manner for five of the six dwellings as set forth in the Administrative Complaint. The Respondent had qualified Sun State Enterprises at the beginning of the project. Subsequently, when it became evident that the project was failing because the houses could not be constructed profitably for the prices at which they had been sold, the Respondent filed a change of status report and qualified Silver Woods, Ltd. This was done pursuant to advice to the Respondent from an investigator for the Department of Professional Regulation. However, the Respondent never pulled any permits in the name of Silver Woods, Ltd. Work on the Silver Woods project stopped in October of 1979 without any notice to prospective owners, and Silver Woods, Ltd., filed for bankruptcy. The Respondent was listed on several documents as the contractor for the project. Moreover, he executed construction loan agreements in the capacity of contractor for the purpose of fulfilling the requirements of lending institutions for providing additional funds to the project. The Respondent knew these documents, with his signature as contractor, were required before the loan proceeds could be disbursed. The Respondent contends that he is exempt from the requirements of Chapter 489, Florida Statutes, because he was acting as an architect rather than as a contractor. He also contends that he acted as a construction manager, instead of a contractor. However, the Respondent had no authority to hire or fire employees, or to sign checks for Silver Woods, Ltd., or to make management decisions relative to the project. These are functions that are performed by construction managers; they were not part of the Respondent's duties. As an architect, the Respondent is exempt from Chapter 489, Florida Statutes, but as a contractor he is not. The substantial, competent evidence in the record does not support a conclusion that the Respondent acted either as an architect or as a construction manager in connection with the pulling of permits for the Silver Woods project.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that license number CO C002063 and license number CG CA02063 held by the Respondent, Robert Jerome Filer, be revoked. THIS RECOMMENDED ORDER entered on this 6th day of August, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982.
The Issue The issue presented is whether Petitioner timely terminated Respondent's employment, as set forth in the Administrative Complaint filed in this cause.
Findings Of Fact On July 22, 1997, Respondent completed his application for employment as a teacher for the school year 1997-98. He was hired to be the coordinator for the English for speakers of other languages (ESOL) program at Western Pines Community Middle School. That position is a teaching position. Western Pines is a new school, opening in time for the 1997-98 school year. Principal Peggy Campbell determined she needed extra assistance for the school to be ready in time for the students. As with any new school, floors needed to be mopped, windows needed to be washed, supplies needed to be unloaded and stored, desks needed to be placed in the classrooms, books needed to be stamped, and many other things needed to be done to get ready. She requested volunteers from the staff she had hired, and Respondent agreed to help prepare the school for the arrival of students. At the time that volunteers were obtained and began working, Campbell did not have approval to pay any of the volunteers. She subsequently obtained approval. Respondent began working as a volunteer on August 1, 1997. He labeled, stamped, and shelved books. He worked a total of 7 1/2 days. Afterward, he was given a one-time paycheck for those 7 1/2 days based upon a daily rate of pay. In computing the amount to pay him, Petitioner calculated a daily rate for Respondent by dividing his annual salary by 196, the number of duty days for teachers within Petitioner's school system. On August 13, 1997, all teachers reported for duty for the 1997-98 school year. August 13 began the five-day pre-school period for instructional employees, a time during which all teachers attend meetings and prepare for the arrival of students. On that date, Respondent began his professional duties as an instructional staff member of Petitioner's school system. That date was also the effective date for Respondent's instructional position. Starting on August 13, 1997, Respondent's duties were substantially different than they were prior to that date. Prior to August 13, 1997, Respondent's work was akin to that of an incidental day laborer. August 20, 1997, was the first day of classes for students within Petitioner's school system. On January 9, 1998, Principal Campbell met with Respondent and gave him a letter advising him that she was recommending to the superintendent the termination of Respondent's employment, effective January 15, 1998. She told him not to report to the school for those interim days but that he was assigned to his home for those additional days for which he would be paid. On February 21, 1998, the School Board ratified that termination, effective January 15, 1998, as part of its consent agenda at a regularly-scheduled Board meeting. At the time Respondent was notified he would be terminated and at the time of the School Board meeting, annual contracts for that school year had not yet been prepared. There is a normal delay with finalizing annual contracts due to extended negotiations with the teacher's union once the budget is final.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered determining that Respondent's employment was terminated within his probationary period. DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 28th day of May, 1999. COPIES FURNISHED: Dr. Joan Kowel, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Thomas E. Elfers, Esquire JenniLynn Lawrence, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33401 Ronald G. Meyer, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302
The Issue Whether Respondent, Greenway Nursery, Inc. (“Greenway”), is liable to Petitioner, Huntsman Tree Supplier, Inc. (“Huntsman”), for the purchase of landscaping trees, and, if so, in what amount.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: Huntsman is a Florida corporation for profit, located in Lake City, and engaged in the business of commercial tree farming. Its owners are James and Michelle Huntsman. Mr. Huntsman is the president of the company and Ms. Huntsman is the secretary. Greenway is a Florida corporation for profit, located in Morriston, and engaged in the business of commercial nursery and landscaping. Its owner and president is Brian D. Love. At issue in this proceeding are two deliveries of trees from Huntsman to Greenway, one on March 12, 2015, and one on June 23, 2015. The invoice for the March 12 delivery indicates that it was billed to Greenway. It is for 12 East Palatka holly trees, 65 gallons each. The trees are billed at the rate of $240 each, for a total bill of $2,880. The invoice indicates that Greenway took delivery of the trees by customer pick-up. The invoice for the June 23 delivery also states that it was billed to Greenway. The invoice includes one ligustrum, eight feet in height, for $200; one 2.5-inch DBH1/ slash pine for $130; two 4-inch live oaks with a height of 14 to 16 feet for $250 each; and one cypress for $240. The total amount of the invoice is $1,070. Again, the invoice indicates that Greenway took delivery by picking up the trees. All of the trees in both invoices were destined for a landscaping project at Adena Golf and Country Club in Ocala (“Adena”). Both parties were involved in planting trees in different areas of the Adena property. The parties’ course of dealing until June 2015, was not completely explained at the hearing. It was clear that Huntsman would directly bill Greenway for the trees and that Greenway would take delivery of the trees by pick-up. It was unclear whether Huntsman expected to receive payment directly from Adena or whether Greenway would pay Huntsman for the trees from payments Greenway received from Adena. In any event, Greenway accepted the billings and took delivery of the trees in each instance, thus accepting ultimate responsibility for payment to Huntsman. In its answer to the Complaint, and again at the final hearing, Greenway admitted liability for the $2,880 stated in the March 12 invoice. Mr. Love agreed to pay Huntsman that amount within 15 days of entry of the final order in this case. However, Greenway denied liability for the $1,070 stated in the June 23 invoice. Mr. Love stated that his company was not liable for these trees because they were not part of his project with Adena. He stated that he installed these trees to replace trees on the Adena property that had died, but that the dead trees had not been the responsibility of his company. Ms. Huntsman denied that the dead trees had been installed in the area of the Adena property where her company was working. She testified that Adena’s representative told her that she should seek payment from Greenway because the June 23 tree delivery constituted “warranty work.” Greenway had planted trees on the Adena property that had died, and Adena considered Greenway the warrantor of those trees and therefore liable for their replacement. Based on all of the testimony, it appears that Huntsman found itself in the middle of a dispute between Greenway and Adena as to whether Greenway had warranted the trees that died, and became aware of the dispute only after it had billed and delivered the trees to Greenway in accordance with the parties usual course of dealing. The evidence was insufficient to establish that Huntsman had any responsibility for, or prior knowledge of, the dead trees. It will be left to one or the other of these parties to take up the issue of payment with Adena. Fundamental fairness dictates that this burden should fall to Greenway. Greenway had the warranty dispute with Adena that caused this controversy. Greenway accepted the bill of lading and the invoice for the June 23 shipment, and took delivery of the trees in accordance with the parties usual course of business. As the innocent supplier of the trees, Huntsman should be made whole.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Huntsman Tree Supplier, Inc., against Greenway Nursery, Inc., in the amount of $4,000. DONE AND ENTERED this 12th day of April, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2016.
The Issue The issue is whether Respondent engaged in an unlawful employment practice with regard to Petitioner.
Findings Of Fact Mr. Bennett was employed as a forester by the Department from May 30, 2003, until his termination on December 10, 2004. During times pertinent he was 30 years of age. The Department is headed by the Commissioner of Agriculture. The Division of Forestry (Division) is an organic element of the Department. Among the duties of the Division are the protection of state forest lands and the provision of forest environmental education and forest recreation. Mr. Bennett had eight to ten years of experience as a forester when he was hired by the Division. His initial assignment was as a forester stationed in the Bear Creek Educational Forest (Bear Creek). Mr. Bennett was diagnosed as having bipolar disorder when he was 19 years of age. He has been medicated since that time with Lithium and Zyprexa. Lithium must be taken on a regular basis. Zyprexa is taken only when the lithium fails to accomplish the desired result. Zyprexa was needed when Mr. Bennett became stressed. Zyprexa taken in a very small dose would not affect Mr. Bennett's ability to work. Larger doses of five or ten milligrams resulted in Mr. Bennett having to be absent from work. Mr. Bennett refrained from revealing his bipolar disorder to his employer. If the effect of the Zyprexa was such that he could not work, he would ask for leave and it would be given to him with no question, at least until August 9, 2004. In performance evaluation periods ending May 2003 and May 2004, Mr. Bennett received acceptable evaluations. These evaluations were mid-range and not remarkable. They did indicate that he consistently achieved Division expectations. At work, Mr. Bennett was teased by co-workers about his excessive weight from time to time and remarks were made to him by fire fighters which indicated that being a forester was not as important as being a fire fighter. This bothered Mr. Bennett. August 9, 2004, was not a good day for Mr. Bennett. His mother was ill and he was feeling stress because of this. He completed a physical examination as a precursor to becoming qualified as a forest fire fighter and then went to Bear Creek despite feeling unwell. When he arrived at Bear Creek he was greeted by Shawn Duggar. Mr. Duggar laughed at him and this upset Mr. Bennett. Mr. Bennett became irate and cursed. It is clear that Mr. Bennett did not physically harm Mr. Duggar, but Mr. Bennett's display of emotion unnerved Mr. Duggar. Mr. Bennett's manner was sufficiently menacing that the physically smaller Mr. Duggar believed that he had reason to fear for his personal safety. As a result of this encounter Mr. Duggar departed the area and drove to the district office. Mr. Bennett felt too upset to work on August 10, 2004. He called in early that day and left a message on Mr. Oswalt's answering machine informing him that he would be unable to come in to work that day. Mr. Oswalt was Mr. Bennett's supervisor at the time. Both Mr. Oswalt and Mr. Weber, the supervisor next up the line, called Mr. Bennett and wanted to have a meeting with him. Later the district manager, Charlie Marcus, called. Lastly, he got a call from John Webster, a bureau chief. Mr. Bennett felt that because he was on sick leave, he did not have to meet with these supervisory personnel. Also to the best of his recollection, Mr. Bennett had taken Zyprexa that morning and as a result, he felt it would be inappropriate to meet with his supervisors while under the influence of that drug. John Webster was sufficiently concerned about Mr. Bennett's behavior that he asked him if he was, "going postal." The phrase "going postal" means engaging in violent acts in the workplace. Subsequently, at Mr. Webster's instigation, Gadsden County Sheriff's Deputy Jenkins came to his residence, which was located within the curtilege of the Bear Creek facility. Deputy Jenkins told Mr. Bennett that he wanted Mr. Bennett to enroll in the Employee Assistance Program (EAP). About one hour later, Deputy Jenkins came back to Mr. Bennett's residence accompanied by Sergeant Wilder from the Gadsden County Sheriff's Office. Mr. Bennett was questioned with regard to his stability and medications, the EAP program was discussed yet again, and Sergeant Wilder observed that Mr. Bennett was "a bit shaky." The officers also talked to Mr. Bennett's girlfriend when she called Mr. Bennett. Thereafter, the officers departed. After several days of suffering from the effects of his bipolar disorder, Mr. Bennett returned to work on August 19, 2005. On August 23, 2004, Mr. Bennett met with his supervisors. As a result of that meeting he was transferred from Bear Creek to Wakulla County, and Ken Weber, the Forestry Operations Administrator for that district, referred him to EAP. He was also required to get a note from his doctor indicating the cause of his absence. The physician's note that he brought the first time failed to specify the type of illness resulting in his absence. He was required to get a second note and he did. This second note also was nonspecific with regard to his illness. The doctors were of the opinion that it would violate Mr. Bennett's privacy if they revealed the nature of his illness. Subsequently, on September 8, 2004, he received a memorandum of counseling. This was not punitive. It merely told him to avoid instances of behavior such as that demonstrated on August 9, 2004. It is important to note at this point, that although Mr. Bennett, immediately after the incident of August 9, 2005, and at the hearing, attempted to minimize the incident with Shawn Duggar, it is found as a fact that Mr. Bennett's actions at that time were irrational and demonstrated a lack of emotional control. This was recognized by the Chief of Human Resources who said he was sent to EAP for "anger management problems." Mr. Bennett successfully completed the requirements of EAP and evidence of this was provided in a letter from Jerry A. Smith of the Allen Group, a provider of employee assistance, which stated, "Mr. Bennett has been compliant with, and has now successfully completed, all recommended treatment." His supervisor at the Wakulla County job was Ken Weber. His work at that job for a few weeks was unremarkable. On October 14, 2004, there was a Wakulla State Forest status meeting which Mr. Bennett attended. Mr. Weber, William Taylor, and others attended. Mr. Bennett suggested that they buy a digital camera for official use. He was informed that he should meet with Allen Griffith, who also used a camera in his work, fill out a necessary form, and then purchase the camera. Mr. Bennett discussed the matter with Allen Griffith briefly, and purchased the camera with his state purchasing card. Mr. Bennett did not fill out the necessary forms due to his lack of understanding of the complexity of state purchasing rules. His purchase of the camera was somewhat precipitous, but there was no malicious intent on his part nor did he personally benefit from the purchase of the camera. He was eventually asked to return the camera to the seller, and he did as asked. Subsequent to Hurricane Ivan, Mr. Bennett was ordered on temporary duty in the Blackwater River State Forest (Blackwater) which had been damaged by hurricane winds. Blackwater is located two to three hours from Crawfordville. He began this duty sometime after the October 14, 2004, meeting. Accommodations for the foresters were provided in a hotel in Crestview. Mr. Bennett was required to share a room with another forester. The roommate to whom he was assigned snored loudly and Mr. Bennett could not obtain the amount or quality of sleep that he needed. This resulted in aggravating his bipolar disorder. The lack of regular sleep, along with the side effects of the lithium he was taking, caused Mr. Bennett's eyes to burn. He had headaches and felt the onset of a manic episode. By the third night his respiration rate increased and he was feeling very stressed. He called his girlfriend and she suggested that she should come get him. He agreed and she drove from the Tallahassee area to Crestview and, beginning after midnight, followed him as he drove his state-assigned vehicle back to Crawfordville, where he ingested some Zyprexa and went to sleep. Mr. Bennett had access to a telephone in Crestview and two-way radio equipment in his truck, but he made no effort to contact his superiors to inform them that he had decamped. Two or three days later he talked to Mr. Weber and explained to him the reason he abandoned his position. Mr. Weber told him that he needed to get some help. The events surrounding the Blackwater forest episode occurred during the work week October 25-29, 2004. Mr. Bennett returned to work Monday, November 1, 2004, after he was able to take his medicine, rest, and achieve stability. Ultimately his superiors sent him back to Blackwater where he stayed in a private room and performed in accordance with expectations. Before Mr. Bennett's planned stay was completed, he was pulled from the Blackwater operation and told he was to be terminated. Although a written reprimand was drafted addressing the camera incident, and another was drafted with regard to the unauthorized departure from the Blackwater operation in October, the letters were never dated, signed, or presented to him. Rather, these matters were addressed in a letter dated November 12, 2004, announcing that he was being recommended for termination. This was signed by Elaine Cooper, Chief of Personnel Management. The letter of November 12, 2004, addressed his failure to follow procedures when purchasing the camera and his unauthorized departure from the Blackwater operation in October. He was notified that his actions constituted a violation of "AP&P No. 5-3, Section V, Insubordination, (Page 3), and Poor Performance, (Page 20), respectively." The letter set a meeting for November 30, 2004, and informed him that he could attend and answer the charges against him. Mr. Bennett responded with a short letter dated November 28, 2004, addressed to Elaine Cooper, Chief of Personnel Management, which informed her that he had a disability which he could manage. He further noted that his disability could cause him to become irritable or angry. He did not reveal his bipolar disorder in this letter. This letter was delivered to Ms. Cooper at the predetermination conference. In a letter dated November 29, 2004, a longer letter was prepared for Ms. Cooper. This letter provided his version of his employment experience as a forester and included a public records request. It did not assert that he was disabled. This letter was delivered to Ms. Cooper at the predetermination conference. At no time prior to November 30, 2004, did Mr. Bennett claim to have a disability or ask for an accommodation as a result of a claimed disability. At no time prior to November 28, 2004, was Mr. Bennett perceived to be disabled by his employer or any of its representatives. When he did inform Ms. Cooper that he believed he had a disability, he did not reveal the nature of his disability. In a letter dated December 6, 2004, addressed to Mr. Bennett, Ms. Cooper noted that at the predetermination conference on November 30, 2004, he informed her for the first time that he believed he had a disability. The letter stated that his doctor should be provided with Mr. Bennett's position description and should comment on his ability to perform in accordance with the position description, with or without an accommodation. No deadline was provided as to when a response was due. In an e-mail dated December 9, 2004, Mr. Bennett asked Ken Weber for one-half day of leave so that he could have his doctor address the matters contained in Ms. Cooper's letter of December 6, 2004. On December 13, 2004, Mr. Weber presented Mr. Bennett with a letter dated December 10, 2004, signed by Ms. Cooper, which informed him that he was terminated effective December 16, 2004. A Special Accommodation for Disability was prepared by Dianna Byrd, a medical doctor, on December 28, 2004, stating that Mr. Bennett should be allowed regular and appropriate lunch breaks and should be allowed to take a five minute break during stressful situations. It further stated that the Department should allow his fiancé to call-in sick for him and that he should be allowed to visit the doctor when he had an appointment. At the time Dr. Byrd described these accommodations, Mr. Bennett's employment relationship with the Department had been severed. It must be noted that even at this late date, no diagnosis was provided. Even when he filed his Charge of Discrimination with FCHR December 21, 2004, he failed to reveal the nature of his asserted disability.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission dismiss Mr. Bennett’s petition. DONE AND ENTERED this 19th day of December, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 19th day of December, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Marie Mattox, Esquire Law Office of Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Stephen M. Donelan, Esquire Department of Agriculture and Consumer Services 509 Mayo Building 407 South Calhoun Street Tallahassee, Florida 32399-0800 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Countrywide Funding Corporation (Countrywide) is a mortgage company, with a home office in Pasadena, California, and branch offices throughout the country. It employs substantially more than fifteen persons, full-time. Wanda Faye Oliver (Faye Oliver) was hired by Countrywide as Branch Manager for its Winter Park, Florida branch on April 28, 1986. Her duties were to market loans for the company, supervise the underwriting and generally supervise the office. At the time of hire, she had a Florida mortgage broker's license and experience as an office manager and branch manager with another company, as well as experience processing loans. Ms. Oliver's starting salary was $32,000 a year. The office under Ms. Oliver performed well, and in April, 1987, she received a special base salary increase to $36,000 annually. The letter awarding the increase congratulates her for hard work and acknowledges her as the leader in the Florida operation. The salary increase was for her increase in production. (Petitioner's Exhibit #1). Several events occurred around April, 1987, to impact the Winter Garden office. Dave Erbst, the individual who hired Oliver and her immediate supervisor in California, was replaced by George Shipman. The local office began having trouble communicating with its home office. Telephone calls were returned a day or two later, and in one instance George Shipman approved a loan that had been denied by the Winter Garden female underwriter without discussing it or informing her in advance. Later, when a male underwriter was hired, George Shipman would talk with him, but not Ms. Oliver. Ms. Oliver complained about the communication problems and about not receiving timely logistical support, such as broker loan kits needed for the approval of additional brokers. In April, 1987, the company opened an office in Atlanta and form letters were sent to approved brokers, including those with whom the Winter Park Office had worked, inviting them to work with the Atlanta office. The new office began closing loans that the Winter Park office had "locked in". In May or June, 1987, Faye Oliver received a satisfactory (average) performance evaluation. She called Shipman and asked to discuss it, as she wanted to explain what she was doing, but he never contacted her about it. In the early summer of 1987, interest rates rose and the market in general decreased. Production at the Winter Park office decreased below its goal of at least $3 million. Production in other wholesale offices of Countrywide substantially decreased as well. In the middle of August, 1987, Rick Cossano was hired by Countrywide as Vice-President in charge of production. He worked out of the Pasadena office and reported to George Shipman. His responsibility was to work with the branch managers to increase production. On August 30, 1987, Countrywide ran a blind advertisement in the Orlando Sentinel newspaper seeking a Director of Broker Operations to "take over the reins of our local broker operations." (Petitioner's Exhibit #11). Faye Oliver read the ad, recognized her job and called Rick Cossano, to find out what was going on. She had never been disciplined by the company and had never been warned or reprimanded. Although there had been discussions about closings that needed to be done to meet goals, there were no complaints about production. Rick Cossano had not heard anything about the advertisement and told Oliver he did not know what was going on. Later, he found out why the company was running the advertisement and he called Faye Oliver to tell her she was being replaced. He also told her the company did not want her to leave because she was a valuable asset and was needed to help run the Winter Park Office. Joe Brick was hired as Branch Manager of the Winter Park Office on September 23, 1987, at a salary of $42,000. At the time, he did not have a Florida mortgage broker's license, but had completed the requirements. He had been self employed as a mortgage consultant and had experience as a mortgage broker manager in Wisconsin. Faye Oliver was demoted without a reduction in pay. Her new title was Branch Operations Manager. She was told by Rick Cossano that she was to train Joe Brick in Countrywide's procedures and to help him with technical matters. She was also supposed to supervise staff, she thought, because Rick Cossano had told her that nothing would change with the demotion. On September 25, 1987, Faye Oliver sent a memo to Rick Cossano requesting a job description. She had only verbally been told of her status and she wanted to know what the demotion meant, since she was still on the same salary and was supposedly given the same duties. She never received a response or any explanation. She had to move to a different office because the new manager needed the office with a telephone. Her new office was physically removed from the rest of the staff and away from the telephones. The staff, at that time, was comprised of three persons, in addition to Ms. Oliver and Joe Brick. Those staff were aware of an attitude change in Faye Oliver but they had no difficulty working with her and they did not feel she was insubordinate or that their work was affected. They were sympathetic to her and felt she was more competent than her replacement. On October 2, 1987, a Friday, Faye Oliver was packing her books, for the fourth time, to move to an office where a telephone had been installed. It was the end of the day and the staff were standing around chatting. After the others left, Joe Brick closed the door and informed her to just keep packing and keep going, that she was being terminated by Rick Cossano's instructions. She was shocked, because, again, she had not been warned and she had relied on Rick Cossano's statements that she was to stay. She asked for a letter explaining the reason. The letter which Joe Brick typed while she packed, states: October 2, 1987 Ms. Faye Oliver C/O Countrywide Funding 2250 Lee Roda [Sic] Winter Park, Florida Dear Faye: Please let this letter serve as notice of termination of your employment by Countrywide. The termination is effective as of the close of business today. The decision to terminate is based upon business conditions and is not to be looked upon as a lay-off. The company does not intend that this be viewed as anything other than a termination. We wish you well in your future persuits [sic] and thank you for your efforts on behalf of Countrywide. Sincerely, Joseph K. Brick JKB/st cc: Rick Cossano Joe Brick was demoted some time later for failure to get along with people in the branch office. He eventually left the company voluntarily. George Shipman was terminated in December 1987. Rick Cossano was the only witness presented at hearing on behalf of the company. He claims that he and George Shipman made the decision to terminate Faye Oliver based on the recommendation of Joe Brick. On October 5, 1987, he sent a handwritten memo to the company personnel office, stating: Date: 10/5/87 To: Hedi Fm: Rick Cossano V.P. Re: Faye Oliver Termination Hedi - This memo is to clarify the termination of Faye Oliver. Faye was previously the Orlando Branch Manger. Due to lack of production, Faye was demoted to operations manager on 9/23/87. Faye's replacement (Joe Brick) was installed on 9/23/87. The new manager observed Faye's attitude deteriorate to the point of affecting other branch employees. Several verbal warnings were issued to Faye by the new manager. Faye was terminated on 10/2/87 due to her negative attitude. R. Cossano D.V.P. Rick Cossano did not personally observe Oliver's performance or attitude after the demotion. He relied on reports from the new manager, Joe Brick. His personal experience with Faye Oliver was limited, as he had only recently been hired. He stated that she complained about not getting support from the company, but he admitted that he never attempted to determine whether her complaints were justified. Rick Cossano claims that the decision to demote Faye Oliver was based on failure to increase production, and that the decision would have been made as much as four weeks prior to the action. The position to which Faye Oliver was demoted had not existed before, nor was it filled upon her termination. In 1987, the company replaced three women branch managers with men and one male manager with a female; in 1988, two male managers were replaced with females. No evidence was presented regarding the basis for the replacements or who at the company was responsible, although Cossano stated that he had terminated people for low production. Evidence regarding the company's basis for the series of personnel actions related to Wanda Faye Oliver is conflicting and confused. On the personnel form reflecting the April 1987 pay raise, the notation "restructure of division" appears under the heading, "Explanation". (Respondent's Exhibit #1) Yet the letter describing the raise relates it to Oliver's performance. Rick Cossano's explanation included different rates of increase for different employees. In August, 1987, shortly after his arrival at the company, Rick Cossano knew nothing about the proposed demotion when called by Ms. Oliver, but at the hearing, he based the demotion decision on her production. No written evidence of the reason for demotion was produced -- no personnel action form, nor notice to Ms. Oliver. The company did not explain the distinction between a "lay-off" and "termination" as those terms are used in Joe Brick's letter to Faye Oliver. Clearly, that letter conflicts with Rick Cossano's account of why she was terminated, allegedly also based on Joe Brick's recommendation. After her termination, Faye Oliver sought employment and was employed as follows: December 1, 1987 - Mortgage America - $30,000 April 30, 1988 annually April 1988 - Unemployed February 1989 February 1989 - Cataret Mortgate, commissions Only April 15, 1989 - approximately $2,500 - $3,500 April 18, 1989 - Disney World approximately present $13,900 annually When she left Countrywide, she had been making $36,000 a year.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered, finding Respondent guilty of an unlawful employment practice in its termination of Petitioner on account of her sex, and awarding back pay and reasonable attorney's fees in accordance with Section 760.10(13), Florida Statutes. DONE and ENTERED this 1st day of September, 1989, at Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2015 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact 1.-4. Adopted in paragraph 2. 5. Adopted in paragraph 3. 6.-8. Adopted in paragraph 7. 9.-10. Adopted in paragraph 4. 11.-12. Adopted in paragraph 9. 13. Adopted in paragraph 8. 14.-17. Adopted in paragraph 9. Adopted in paragraph 10. Rejected as unnecessary. 20.-21. Adopted in paragraph 16. Adopted in paragraph 13. Adopted in paragraph 14. Rejected as unnecessary. Adopted in paragraph 17. Adopted in paragraph 14. Adopted in paragraph 13. 29.-30. Adopted in paragraph 10. 31.-32. Adopted in paragraph 14. 33. Adopted in paragraph 15. 34.-35. Adopted in paragraph 20. 36. Rejected as irrelevant. Respondent's Proposed Findings of Fact Adopted in paragraphs 2 and 14. Adopted in substance in paragraphs 5 and 6. Adopted in substance in paragraphs 4 and 6. Adopted in paragraph 9. Adopted in paragraphs 9 and 11. Rejected as unsupported by competent evidence. The claims by Rick Cossano are contradictory. The first sentence is adopted in paragraph 13. The remainder is rejected as immaterial. Rejected as immaterial. Adopted in part in paragraph 18; otherwise rejected as unsupported by evidence. Rejected as contrary to the weight of evidence. COPIES FURNISHED: N. James Turner, Esquire Suite 104 17 South Lake Avenue Orlando, FL 32801 Thomas R. Peppler, Esquire P.O. Box 2807 250 North Orange Avenue Orlando, FL 32802 M'Liss Jones Kane, Esquire P.O. Box 7137 Pasadena, CA 91109-7137 Donald A. Griffin Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1925 Dana Baird, General Counsel 325 John Knox Road Bldg. F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Florida Commission on Human Relations Bldg. F, Suite 240 Tallahassee, FL 32399-1925 =================================================================
Findings Of Fact Respondent is a dealer in agricultural products and is licensed by the Department of Agriculture and Consumer Services, under Sections 604.15-604.34, Florida Statutes. On or about April 29, 1987, Steve Brill, who is a project manager and landscape architect employed by Respondent, placed an order with Petitioner, on behalf of Respondent, for various trees. The order was never reduced to writing by Respondent. Respondent ordered six dogwoods, one 18-foot ilex, three 13-foot ilex, 14 laurel oaks, and two ligustrums. Sandra Couey, who took the telephone order for Petitioner, informed Mr. Brill that he could have a higher quality $350 ligustrum or a lower quality $200 ligustrum. He chose the cheaper tree. Mr. Brill requested 18-foot dogwoods, but Ms. Couey informed him that the largest she had was 12 feet. On May 14, 1987, Respondent's driver picked up the trees at Petitioner's nursery. Ms. Couey had removed the ilex from the shipment because these trees, which had been purchased by her from another nursery, were of poor quality. The driver left a check in the amount of $3003, which, by prior agreement of the parties, was not to be deposited for 30 days. Alberto Ribas, president of Respondent, had asked Ms. Couey on the prior day to hold the check until the customer paid Respondent. Immediately upon receiving the shipment, Mr. Brill and Mr. Ribas noticed that the dogwoods were 12 feet and that the quality of the ligustrums were, in Mr. Brill's words, "shaky." Petitioner and Respondent did not communicate again until June 3, 1988, when Ms. Couey telephoned Mr. Ribas to see if she could deposit the check one week early. During the June 3 conversation or shortly thereafter, Mr. Ribas first complained to Ms. Couey about the quality of the trees. He stopped payment on the check and advised Ms. Couey that he intended to procure replacement trees elsewhere, for which Petitioner would be liable, if she did not replace the trees within seven days. Respondent ordered and Petitioner delivered six dogwood trees for a total agreed-upon price of $720, 14 laurel oak trees for a total agreed-upon price of $840, and two ligustrum trees for a total agreed-upon price of $400, which, plus tax, comes to a total of $2058. To date, Respondent has paid nothing of this amount.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered requiring Respondent to pay Petitioner the sum of $2058. DONE and RECOMMENDED this 30th day of September, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 30th day of September, 1988. APPENDIX Treatment Accorded Respondent's Proposed Findings 1-2. Adopted. 3. First sentence adopted. Second sentence rejected as irrelevant. The dogwoods met the requirements of the contract or agreement between Petitioner and Respondent, regardless whether they met the requirements of Respondent's job. 4-5. Adopted in substance. 6-7. Rejected as irrelevant and against the greater weight of the evidence. 8. Adopted in substance. COPIES FURNISHED: Sandy D. Couey, Owner Southern Trees, Inc. Route 1 Box 60-J High Springs, Florida 32643 Stuart H. Sobel, Esquire Sobel & Sobel, P.A. Penthouse 155 South Miami Avenue Miami, Florida 33130 United States Fidelity & Guaranty Company Post Office Box 14143 Tampa, Florida 33623 Clinton H. Coulter, Jr., Esquire Department of Agriculture Consumer Services Mayo Building Ben Pridgeon Bureau of License & Bond Mayo Building Tallahassee, Florida 32399 Robert Chastain General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32399-0810 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810
The Issue Whether Petitioner, Gateway Farms, LLC, is entitled to payment from Landscape Service Professionals, Inc., and the Gray Insurance Company, as Surety, pursuant to sections 604.15 through 604.34, Florida Statutes (2015), for the purchase of trees; and, if so, in what amount.
Findings Of Fact The Parties Gateway is a producer and seller of agricultural products, including slash pine trees. Gateway operates tree farms on 200 acres in five different locations in Columbia, Alachua, and Suwannee Counties. David Hajos is the owner and principal operator of Gateway. Mr. Hajos has 17 years of experience in growing, harvesting, and selling pine and other species of trees in Florida. Respondent Landscape is a Florida licensed dealer in agricultural products, pursuant to chapter 604. Landscape is a full-service landscape business located in Tamarac, Florida. Sandy Benton has been the president of Landscape for 18 years. Respondent, Insurance Company, filed a denial of the claim and was represented at hearing by Landscape’s counsel. Gateway has been doing business with Landscape for many years, with no indication of prior problems relating to the quality of trees provided. Lynn Griffith, Landscape’s plant and soil expert, considers Gateway to be a competent and professional grower. The Setting At all relevant times, Landscape was a contractor responsible for installing landscaping at the Palm Beach County Solid Waste Authority (SWA) site on Jog Road in Palm Beach County, Florida. Pursuant to orders placed by Landscape, Gateway sold a total of 148 slash pines for use at the SWA site. The invoices for those pines are dated January 22 and 23, and February 9 and 16, 2015. Upon their arrival at the site, authorized personnel of Landscape received, inspected, and accepted the 148 slash pine trees. No problems or concerns were expressed regarding the delivery or condition of the slash pines. The Dispute Giving Rise to this Proceeding Between 20 and 30 of the trees ordered from Gateway were intended as replacement trees for the approximately 150 slash pines provided by six other vendors that had been planted by Landscape, and then died. When the dead trees were removed by Landscape, pine beetles were observed infesting the trees. Within several weeks of planting, 58 of the slash pines purchased from Gateway began to show signs of decline, resulting in their eventual death. Landscape consulted with the Palm Beach County Extension Service and industry professionals as to the cause of the death and decline of the slash pine trees, who undertook an investigation into the same. Slash pine trees are very sensitive and can be easily stressed. Stress can be caused by a variety of factors including: transplanting; harsh handling; bark exposure to sunlight, including superficial wounds to the bark; too much or too little water; or planting too deeply. The stress will cause a tree to emit chemicals that attract beetles, which inhabit the trees and may kill a stressed tree within a week or two of the infestation. In March 2015, Lynn Griffith, an agricultural consultant, conducted an SWA site visit. Mr. Griffith noted that a majority of the planted pines were healthy, but there were some that were not doing well; some had holes in them indicative of a pine beetle infestation. In his report dated March 12, 2015, Mr. Griffith opined on the impact of the ambrosia (pine) beetle infestation on the slash pines: The quantities of boreholes in some of the dead or declining pines would lead me to conclude that borers could be a primary cause of death, but in other cases the number of holes was low, indicating the pine decline was initiated by other factors. In an e-mail dated April 24, 2015, Ms. Benton advised Gateway (and JWD Trees, another supplier of slash pines to the SWA site) that the cause of the death and decline of the slash pine trees were because the two suppliers failed to properly prepare them in the nursery, and had sold them to Landscape with root systems inadequate to support the normal performance of the plant. At hearing, Ms. Benton’s opinion regarding the cause of death of the pines was echoed by John Harris, accepted as an expert in landscape economics and arborism. Mr. Harris’s opinion centered on only one possible explanation for the trees’ demise: a failure to have an adequate root system or an inability of the roots to generate new growth. Typically, this is caused by improper “hardening off” of the root system by the grower. However, on cross-examination, Mr. Harris acknowledged that while pine beetles typically infest stressed trees, if the beetle population builds up enough in an area they will attack otherwise healthy trees. At hearing, Mr. Hajos testified that the pine trees he supplied to Landscape had been properly hardened off for a period of six weeks: Hardened off is a process when you dig a tree and you hold it until it starts to regenerate new roots, so instead of just digging it up and selling it we dig it up and hold it under optimal irrigation and nursery conditions before we ship the tree. Mr. Hajos further testified that any trees that are going to die due to the stress of being dug out of the ground will die during the hardening off process. Mr. Hajos attributed the death of the Gateway trees to several factors, including stress caused by improper lifting of the trees during loading and unloading, stress caused by a delay in planting the trees after they arrived at the SWA site, and the pre-existing pine beetle infestation. Mr. Hajos examined a photograph received in evidence and explained that it showed a tree being improperly lifted by Landscape personnel during unloading. The photograph showed the strap around the tree trunk doing the primary lifting. The result is that rather than distributing the pressure between the trunk and the strap on the root ball, the root ball will be loosened, which will stress the tree. Mr. Hajos testified that he was aware that the Gateway trees that had been delivered to the SWA site were left on the ground for days before being planted. This testimony was corroborated by Landscape’s Daily Job Report log which reflected the delivery of the first load of Gateway pines to the SWA site on January 23 and 24, 2015, but that planting of those trees did not begin until January 29, 2015. On one occasion, a Landscape truck that had picked up trees from Gateway, broke down in Ocala on its return trip to Palm Beach County and had to return to the Gateway site in High Springs. There, the trees were unloaded, and then reloaded onto a different truck where they were delivered two days later to the SWA job site. This inordinate delay and additional loading and unloading further stressed the trees. Once Landscape became aware that it had a beetle infestation at the SWA site, it began a preventative spray program. However, once a pine beetle has entered the bark of a pine tree preventative spraying will be ineffective at eradicating the pest. Newly planted pine trees at the SWA site were not sprayed on the day of planting, thereby providing the pine beetles an opportunity to infest the new trees. Guy Michaud was Landscape’s job foreman at the SWA site. Mr. Michaud has been in the business of planting trees since 1983, and has worked for Landscape for 14 years. Mr. Michaud could not testify with certainty that the Gateway trees died of inadequate roots, as opposed to a beetle infestation. None of the other species of trees sold by Gateway for use at the SWA site experienced problems. Based on the totality of the evidence, it is more likely than not that a combination of factors contributed to the SWA slash pine deterioration, including delays in planting the trees after delivery, rough handling, and the beetles. None of these causes are attributable to the actions of Gateway. Likewise, the greater weight of the evidence does not support a conclusion that the trees sold by Gateway to Landscape were non- viable nursery stock. Subsequent to filing its claim in the amount of $13,462.30 with the Department, Gateway received a payment of $5,528.84 from Landscape. Thus, the unpaid balance due Gateway for the 58 slash pines is $7,933.46. Gateway is entitled to payment in the amount of $7,933.46 for the slash pine trees it provided to Landscape. Besides the amount set forth above, Gateway claims the sum of $50.00 paid for the filing of the claim against Landscape and its bond. The total sum owed to Gateway by Landscape is $7,983.46.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services approving the claim of Gateway Farms, LLC, against Landscape Professional Services, Inc., in the total amount of $7,983.46 ($7,933.46 plus $50 filing fee); and if Landscape Professionals Services, Inc., fails to timely pay Gateway Farms, LLC, as ordered, that Respondent, The Gray Insurance Company, as Surety, be ordered to pay the Department of Agriculture and Consumer Services as required by section 604.21, Florida Statutes, and the Department reimburse the Petitioner as set out in section 604.21, Florida Statutes. DONE AND ENTERED this 18th day of March, 2016, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 18th day of March, 2016.
