The Issue The issue is whether Celebration Acres, Inc., or its surety, Florida Farm Bureau General Insurance Company, is liable for funds due Mike's Green Thumb, Inc., for the sale of agricultural products.
Findings Of Fact Petitioner is a Florida corporation with its principal place of business in Delray Beach, Florida, where it engages in the production of nursery stock. Mr. Michael Raimondi testified at the hearing on Petitioner's behalf. Respondent is a Florida corporation located in Coral Springs, Florida. At the time of the transactions which are the subject of this proceeding, Respondent was licensed as a dealer in agricultural products supported by Surety Bond Number BD 0692212 (the Bond) in the amount of $16,000. Respondent engages in the business of landscaping. Mr. David Urs testified at the hearing on Respondent's behalf. Co-Respondent is a corporation, licensed to do business in the state of Florida as an insurer. As surety, it provided the Bond for Respondent. The conditions and provisions of the Bond are to assure proper accounting and payment to producers for agricultural products purchased by Respondent. From October of 1993 through February of 1994, Petitioner sold nursery plants of its own production to Respondent at a sale price in the total amount of $14,562.35. The parties have done business together for over six (6) years. During that time, they have not established a course of performance or course of dealing regarding the terms of payment. In fact they have consistently argued over this point through out their business relationship. Respondent did not always send Petitioner a purchase order. When Petitioner received purchase orders, they consistently stated at the top that the terms of payment would be "net 30." However, on some occasions, the Respondent also stamped the purchase orders with the following additional payment terms: Terms of payment are per contract between general contractor and Celebration Acres, Inc.; and (b) Material sold by this purchase order once installed by Celebration Acres, Inc. belongs to the owner of the property where installed. Payment is due to supplier when payment is received by Celebration Acres, Inc. Suppliers are encouraged to protect themselves by sending a notice to owner. Regardless of whether Petitioner received a purchase order, it always sent Respondent an invoice stating that payment was due thirty (30) days after the date of invoice. The parties agree that subject invoices reflect the correct sale price for plants delivered and accepted. On or before October 11, 1993, Respondent bought 1343 Liriope and 132 Indian Hawthorne from Petitioner for a total sale price of $4,419.25. The express terms of payment for this sale was net in 30 days as set forth in Purchase Order No. 157 and Invoice No. 6504. Mr. Urs, Respondent's witness, testified that Purchase Order No. 157 is incomplete and that Respondent sent Petitioner a subsequent purchase order containing the additional payment terms referenced above in paragraph six (6). Mr. Urs' testimony is contrary to the more compelling testimony of Mr. Raimondi, Petitioner's witness. Respondent admits that it owes and has not paid Petitioner $4,419.25 for Invoice No. 6504. Payment for this invoice is past due. On or before December 16, 1993, Respondent sent Petitioner Purchase Order No. 193 for 200 Variegated Liriope. This purchase order contains the additional payment terms referenced above in paragraph six (6), i.e., payment was due pursuant to the terms of the contract between Respondent and the City of Oakland Park. Pursuant to this order, Petitioner delivered and Respondent accepted 230 plants as described in Respondent's Invoice Nos. 7528 and 7713 for a total sale price of $379.50. Respondent admits that it owes and has not paid Petitioner $379.50 for Invoice Nos. 7528 and 7713. Record evidence indicates that Respondent has completed its work for the City of Oakland Park. Additionally, there is no pending dispute over that contract; Respondent expected payment by May 26, 1994. Petitioner has met its burden of proof regarding Invoice Nos. 7528 and 7713. Respondent presented no evidence to show that payment is not due. Accordingly, payment for Invoice Nos. 7528 and 7713 is past due. On or about November 29, 1993, Respondent sent Petitioner Purchase Order No. 175 requesting shipment of various kinds of nursery stock. Respondent stamped this invoice with the terms referenced above in paragraph six (6). After receiving the order, Petitioner sent Respondent Invoice Nos. 7236 and 7408 reflecting a total sale price in the amount of $5,490.50. At the formal hearing, Respondent produced a copy of a Final Release of Lien signed by Petitioner's representative indicating that Petitioner received payment for Invoice Nos. 7236 and 7408. The release appears to bear an imprint of Petitioner's corporate seal. Petitioner asserts that Respondent never paid for Invoice Nos. 7236 and 7408. Mr. Raimondi, Petitioner's representative, occasionally signed a release before receiving funds so that a general contractor would pay Respondent, who promised, in turn, to pay Petitioner. Respondent faxed the subject release to Mr. Raimondi who signed it and faxed it back to Respondent. Someone at Respondent's office notarized Mr. Raimondi's signature. Respondent presented no evidence to show whether Petitioner ever received payment for Invoice Nos. 7236 and 7408. Respondent admits that it would occasionally request the execution of a release before paying Petitioner for plant material. Mr. Urs, Respondent's representative, testified that Respondent may have paid Petitioner in one of two ways: (a) by Respondent's check (company or certified); or (b) by the general contractor's check payable jointly to Respondent and Petitioner. The testimony of Mr. Urs, Respondent's representative, concerning the parties' execution of releases in general, and the subject release in particular, is contrary to the more compelling testimony of Mr. Raimondi, Petitioner's representative. Petitioner has met its burden of proving that payment for Invoice Nos. 7236 and 7408 is past due. On or about January 27, 1994, Respondent sent Petitioner Purchase Order Nos. 232 and 234 for assorted nursery plants. Both purchase orders contain the additional payment terms referred to in paragraph six (6) above. In response to these orders, Petitioner sent Respondent Invoice Nos. 8026 and 8027 for $660.75 and $612.35 respectively. Respondent admitted at the formal hearing that it owed Petitioner for Invoice Nos. 8026 and 8027 and that payment was past due. On or about February 14, 1994, Petitioner sent Respondent Invoice No. 8244 for 1500 Fern Sword listing the sale price in the amount of $3,000. Neither party produced a corresponding purchase order for this invoice and Petitioner did not recall receiving one. Mr. Urs, Respondent's representative, testified that Respondent owed Petitioner for Invoice No. 8244, but that payment is not due because Respondent has not received payment from the general contractor or the owner, Palm Beach County. Petitioner admits it has been in contact with the general contractor's bond company in an attempt to collect the debt. However, there is no persuasive record evidence that Petitioner ever agreed to defer payment until the general contractor or owner paid Respondent. Petitioner has met its obligation of proving that payment for Invoice No. 8244 is past due.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, I recommend that the Department of Agriculture and Consumer Services enter a Final Order directing Respondent and/or its surety and Co-Respondent to pay Petitioner $14,562.35. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22 day of December 1994. SUZANNE F. HOOD, Hearing Officer 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 21st day of October, 1994. COPIES FURNIHSED: Florida Farm Bureau General Insurance Company (Legal Dept.) Post Office Box 147030 Gainesville, Florida 32614 Michael Raimondi, President Mike's Green Thumb, Inc. Post Office Box 6279 Delray Beach, Florida 33445 David S. Urs, Vice President Celebration Acres, Inc. 3300 University Dr. #514 Coral Springs, Florida 33065 Richard Tritschler, Esquire Dept. of Agriculture & Consumer Services The Capitol PL-10 Tallahassee, Florida 32399-0810 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL - 10 Tallahassee, Florida 32399-0810
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011).1/
Findings Of Fact The parties have stipulated that the Petitioner is a "small business party" as the term is defined at section 57.111(3)(d). On June 21, 2010, the Petitioner applied to acquire an existing alcoholic beverage "quota" license from another licensee. The Petitioner had to pay a fee to transfer the license pursuant to section 561.32(3)(a), Florida Statutes (2010), which provides as follows: Before the issuance of any transfer of license herein provided, the transferee shall pay a transfer fee of 10 percent of the annual license tax to the division, except for those licenses issued pursuant to s. 565.02(1) and subject to the limitation imposed in s. 561.20(1), for which the transfer fee shall be assessed on the average annual value of gross sales of alcoholic beverages for the 3 years immediately preceding transfer and levied at the rate of 4 mills, except that such transfer fee shall not exceed $5,000; in lieu of the 4-mill assessment, the transferor may elect to pay $5,000. Further, the maximum fee shall be applied with respect to any such license which has been inactive for the 3-year period. Records establishing the value of such gross sales shall accompany the application for transfer of the license, and falsification of such records shall be punishable as provided in s. 562.45. All transfer fees collected by the division on the transfer of licenses issued pursuant to s. 565.02(1) and subject to the limitation imposed in s. 561.20(1) shall be returned by the division to the municipality in which such transferred license is operated or, if operated in the unincorporated area of the county, to the county in which such transferred license is operated. (emphasis added). License transfer applicants are required to provide gross sales records pursuant to Florida Administrative Code Rule 61A-5.010(2)(b), which provides as follows: An applicant for a transfer of a quota liquor license shall provide records of gross sales for the past 3 years or for the period of time current licensee has held license in order that the division may compute the transfer fee. An applicant may, in lieu of providing these records, elect to pay the applicable transfer fee as provided by general law. The gross sales records provided to the Respondent by the Petitioner were for the five-month period between January 21 and June 21, 2010, and totaled $573,948.94 for the period. To compute the transfer fee, the Respondent divided the reported gross sales ($573,948.94) by five to estimate an average monthly gross sales figure of $114,789.79.2/ The Respondent multiplied the estimated average monthly gross sales by 12, to estimate annual gross sales of $1,377,477.48. The Respondent then applied the 4-mill rate to the estimated annual gross sales and determined the transfer fee to be $5,509.91. The Respondent also calculated the transfer fee through a formula set forth on a form that had been challenged as an unadopted rule by an applicant in a 2008 proceeding. While the 2008 rule challenge was pending, the Respondent commenced to adopt the form as a rule, but the dispute was ultimately resolved without a hearing, after which the Respondent discontinued the process to adopt the rule. According to the formula on the form, the transfer fee was $5,599.50. Because both of the Respondent's calculations resulted in transfer fees in excess of $5,000, the Respondent required the Petitioner to pay the statutory maximum of $5,000. The Petitioner paid the $5,000 transfer fee under protest. The Petitioner asserted that the appropriate transfer fee should have been $765.27. The Petitioner's calculation used the reported five months of gross sales ($573,948.94) as the total annual gross sales for the licensee. The Petitioner divided the $573,948.94 by three to determine a three-year average of $191,316.31 and then applied the 4-mill rate to the three-year average to compute a transfer fee of $765.27. On March 17, 2011, the Petitioner filed an Application for Refund of $4,234.73, the difference between the $5,000 paid and the $765.27 that the Petitioner calculated as the appropriate fee. The Application for Refund was filed pursuant to section 215.26, Florida Statutes, which governs requests for repayment of funds paid through error into the State Treasury, including overpayment of license fees. Section 215.26(2) requires that in denying an application for a tax refund, an agency's notice of denial must state the reasons for the denial. As authorized by section 72.11(2)(b)3, Florida Statutes, the Respondent has adopted rules that govern the process used to notify an applicant that a request for refund has been denied. Florida Administrative Code Rule 61-16.002(3) states as follows: Any tax refund denial issued by the Department of Business and Professional Regulation becomes final for purposes of Section 72.011, Florida Statutes, when final agency action is taken by the Department concerning the refund request and taxpayer is notified of this decision and advised of alternatives available to the taxpayer for contesting the action taken by the agency. By letter dated May 9, 2011, the Respondent notified the Petitioner that the request for refund had been denied and stated only that "[w]e reviewed the documentation presented and determined that a refund is not due." The Respondent's notice did not advise that the Petitioner could contest the decision. On May 16, 2011, the Petitioner submitted a Request for Hearing to the Respondent, asserting that the Respondent improperly calculated the transfer fee by projecting sales figures for months when there were no reported sales. On August 4, 2011, the Respondent issued a letter identified as an "Amended Notice of Denial" again advising that the Petitioner's refund request had been denied. The letter also stated as follows: The Division cannot process your refund application due to the fact that the transferee has not provided the Division records which show the average annual value of gross sales of alcoholic beverages for the three years immediately preceding the transfer. On September 14, 2011, the Respondent forwarded the Petitioner's Request for Hearing to the Division of Administrative Hearings (DOAH Case No. 11-4637). By letter dated October 10, 2011, the Respondent issued a "Second Amended Notice of Denial" which stated as follows: We regret to inform you that pursuant to Section 561.23(3)(a), Florida Statutes, your request for refund . . . in the amount of $4,234.73 is denied. However, the Division has computed the transfer fee and based upon the records submitted by you pursuant to Rule 61A-5.010(2)(b), F.A.C., the Division will issue the Applicant a refund in the amount of $2,704.20. The records referenced in the letter were submitted with the original application for transfer that was filed by the Petitioner on March 17, 2011. The Respondent's recalculated transfer fee was the result of applying the 4-mill levy directly to the reported five months of gross sales reported in the transfer application, resulting in a revised transfer fee of $2,295.80 and a refund of $2,704.20. On October 11, 2011, the Respondent filed a Motion for Leave to Amend the Amended Notice of Denial, which was granted, over the Petitioner's opposition, on October 21, 2011. DOAH Case No. 11-4637 was resolved by execution of a Consent Order wherein the parties agreed to the refund of $2,704.20 "solely to preclude additional legal fees and costs," but the Consent Order also stated that the "Petitioner expressly does not waive any claim for attorneys' fees in this matter pursuant to F.S. 57.111." The Petitioner is seeking an award of attorney's fees of $8,278.75 and costs of $75, for a total award of $8,353.75. The parties have stipulated that the amount of the attorney's fees and costs sought by the Petitioner are reasonable. The Respondent failed to establish that the original calculation of the applicable transfer fee was substantially justified. The evidence fails to establish that there are special circumstances that would make an award unjust.
Findings Of Fact The Respondent has been employed with the Brevard County School Board for approximately nineteen years. Before he was suspended in connection with this proceeding, he held the position of Warehouse Coordinator. The warehouse maintained by the School Board houses various operations. Its basic function is to store and distribute goods. The School System's film library, textbooks, courier service, media center, and transportation and maintenance parts department are all operated at the warehouse. Among specific warehouse functions is the sale of salvage goods. The job description for the Warehouse Coordinator was developed sometime during the period 1972 to 1974. The Respondent has held the position since that time. Prior to then, the Respondent served as the "Storekeeper" with essentially the same duties. The job description for the Warehouse Coordinator lists the position's major functions as follows: This involves the supervision over the operations of a portion of a large-sized warehouse or complex pertaining to stock and supplies and their distribution. This supervision also includes movement of all foods and surplus property items. The employee is responsible for the efficient operation of the warehouse complex and performs his/her duty under the general direction of the Director of Warehousing and Distribution and in accordance with established procedure and regulations. The description lists illustrative duties as follows: Supervises the receipt and storage of a large variety of supplies, materials, and equipment; supervises the proces- sing of requisitions and issuance of supplies in accordance with prescribed procedures; supervises the maintenance of perpetual inventories and the prepa- ration of detailed stores, records and reports; keeps superior notified of stock on hand and suggests purchases of designated commodities and materials; recommends and supervises the mainte- nance of proper minimum and maximum stock amounts. Coordinates and supervises the receipt, storage and delivery of surplus com- modities for the school lunchrooms; negotiates with carrier representa- tives concerning payment for goods damaged in shipping; supervises the movement of all surplus items and equipment between the schools and warehouse. Performs related work as required. Among the Respondent's specific duties was responsibility for disposing of scrap metal. The Respondent was responsible for supervising the loading of scrap metal onto trucks, the transporting of it to a salvage dealer, collecting money from the dealer and turning money in to the accounting clerk. During the years that the Respondent served as Warehouse Coordinator and Storekeeper, he received consistently high evaluations, generally in the "exceptionally high" range. It does not appear that he has ever been the subject of any disciplinary proceedings prior to this matter, and it appears that he has been regarded as a very capable and trusted employee. In disposing of scrap metal, the Respondent would supervise the loading of the material onto trucks at the warehouse. The drivers, who were generally classified as "storage clerks," would drive the trucks to a scrap metal dealer. The scrap metal dealer would issue an invoice and typically pay the drivers in cash. The drivers would return to the warehouse. On most occasions, the drivers would deliver the invoice and cash directly to the Respondent. On some occasions, however, because the Respondent was otherwise occupied, the money would be left on the Respondent's desk in his office, or in one of his desk drawers. The Respondent's office was located in the center of the warehouse. It was generally open to all employees, and employees frequently used the office to make telephone calls. Once the cash was delivered to the Respondent, he would deliver it to the warehouse accounting clerk, or to his supervisor, who would then be responsible for delivering it to the accounting clerk. Whether the money was delivered by the Respondent or by some other person, the accounting clerk would issue a receipt. The receipt would indicate that the funds were received from the scrap metal dealer. The receipt would not reveal whether Respondent or some other person delivered money to the accounting clerk. The receipts were numbered and issued in order. Receipt books were maintained so that copies of all receipts that were issued were preserved. During the early part of 1981, an investigation was initiated by the School Board respecting warehouse funds. The investigation was conducted under the supervision of the Board's Chief of Plant and Personnel Security, Bill H. Schwartz. Among other things, Mr. Schwartz compared invoices from the scrap metal dealer with the receipts maintained by the School Board and came to the conclusion that some money reflected on invoices had not been receipted. He interviewed numerous witnesses, including the Respondent. Schwartz came to the conclusion that the unreceipted funds ended with the Respondent. Based upon the demeanor of Mr. Schwartz on the witness stand, and upon statements of the witness that were clearly inaccurate, the witness Schwartz's testimony and conclusions have not been deemed credible. Schwartz testified, for example, that receipts issued by the School Board reflected who delivered the cash to the accounting clerk. This testimony is inaccurate. The receipts issued by the accounting clerk reflected only that funds were received from the scrap metal dealer. That fact is not a minor aspect of the investigation respecting the missing funds, and the witness Schwartz's faulty memory about it cannot be lightly regarded. This error and the witness's demeanor otherwise reveal that Schwartz focused his investigation initially upon the Respondent, considered the Respondent the culprit, and was not open to other conclusions during his investigation, or as a witness. Schwartz's testimony respecting statements made to him by the Respondent has been similarly deemed not credible. During the investigation, an invoice from the scrap metal dealer, together with some cash, was found in Respondent's desk drawer. The Respondent delivered the money to the accounting clerk. The invoice was approximately four months old at the time that it was delivered. The Respondent was expected to deliver money to the accounting clerk immediately upon its receipt. The four- month delay in an isolated case, however, does not reflect impropriety on the Respondent's part. Clearly, procedures followed by the Respondent in allowing employees that he supervised to leave money on his desk or in his desk drawers were lax. These procedures, however, had been followed for many years in the warehouse and were well known to at least some of the persons who held the position of Respondent's supervisor. Despite that knowledge, the Respondent received consistently outstanding evaluations. To the extent that the procedures Respondent followed violated School Board regulations, he could and should have been informed of it many years prior to the incidents which gave rise to this proceeding. After the investigation conducted by Mr. Schwartz, an audit was conducted of the scrap metal invoices and receipts. The audit revealed that approximately $230 was reflected as being paid to the School Board that was not reflected as being received. There are many possible explanations for this discrepancy. One possible explanation is that the Respondent received the cash from the employees that he supervised and failed to turn it in to the accounting clerk. Among other possible explanations are that employees of the scrap metal dealer falsely issued invoices and retained the cash for their personal purposes; that truck drivers improperly failed to turn money over to the Respondent; that money left by drivers on the Respondent's desk was taken by some other person; that the Respondent's supervisor, to whom the Respondent from time to time delivered the money so that it would be later turned over to the accounting clerk, failed to turn it over; or that the accounting clerk issued erroneous receipts. The evidence reveals no more than that the Respondent is one of numerous persons who could be responsible for the discrepancy. Paul Green was formerly employed by the School Board at its warehouse as a storage clerk. He testified at the hearing that the Respondent told him to pick up storage sheds at a commercial outlet and deliver them to a third party. The witness Green testified that this was done for the Respondent's private benefit. Green testified that the loading was accomplished by him and another School Board employee while they were on duty as School Board employees and that a School Board truck was used. The witness Green's testimony has been deemed not credible. This conclusion is based upon Green's demeanor as a witness, upon inherent contradictions in his testimony, and upon statements in his testimony that were shown to be untrue. Green was a very guarded witness. At times he wanted to reveal information but not reveal the source of the information. Green had at one time been terminated from his employment with the School Board, and he displayed hostility about that and toward the Respondent. Green testified that on one occasion he personally conducted an investigation about food being delivered by School Board employees on other than refrigerated trucks that were required for such use. He testified that he conducted the investigation while he was not on duty. His cohort, however, who assisted in the "investigation" testified to the contrary. Even if Green's testimony were credited, the evidence would not reveal who owned the sheds, whether the Respondent had been instructed by some other person to deliver them, and whether the School Board employees and trucks were or were not properly used to deliver them. The Respondent has been under suspension from his employment with the School Board since May 12, 1981.
The Issue The issue is whether Respondent improperly withheld points, in scoring Petitioner's application, for proximity to a grocery store, so as to improperly deny Petitioner an opportunity to enter the credit underwriting phase of the process by which Respondent allocated federal income tax credits for low-income housing projects in the 2006 funding cycle. (Pursuant to Florida Administrative Code Rule 67-48.005(4), Respondent would send Petitioner's proposal to credit underwriting for the 2007 funding cycle, if Petitioner proves that Respondent improperly scored Petitioner's application in the 2006 funding cycle, which is now closed by operation of federal law.)
Findings Of Fact This case involves the 2006 funding cycle of Respondent's Housing Credit program. In this program, Respondent allocates nine percent low-income housing, federal income tax credits to various developers and investors based on their proposals to construct qualified affordable rental housing units in Florida. Because the demand for federal income tax credits allocated to Florida exceeds the supply of such credits, Respondent has adopted an elaborate scoring program, supplemented with tie-breaker points and lottery numbers, to evaluate competitively the various proposals. On February 1, 2006, Petitioner timely filed its application for an allocation of federal income tax credits under the Housing Credit program (Application). The Application seeks an allocation of federal income tax credits in the Large County set-aside for the construction of a 132-unit apartment complex in Miami. Sufficient applications routinely receive maximum scores that Respondent has had to adopt tie-breaking criteria to differentiate between those proposals that may enter credit underwriting and those proposals that may not, due to the lack of available federal income tax credits. These criteria involve the proximity of the proposed project to certain services or facilities, such as public transit, medical clinics, and grocery stores. Sufficient applications routinely receive all of the tie-breaker points that Respondent has had to assign lottery numbers to further differentiate between those proposals that may enter credit underwriting and those proposals that may not. The sole issue in this case is the proximity of the project proposed by Petitioner to a grocery store. Petitioner's proposal received the maximum score, exclusive of the tie- breaker score. Petitioner's proposal received a lottery number that, if its proposal earned the grocery-store tie breaker points, it would enter credit underwriting. Page 14 of the application instructions defines a "grocery store" as: a retail establishment, open to the public, . . . consisting of 4,500 square feet or more of air conditioned space, which as its major retail function sells groceries, including foodstuffs, fresh and packaged meats, produce and dairy products, which are intended for consumption off-premises, and household supplies . . .. Page 15 of the application instructions requires that the grocery store "must be in existence and available for use by the general public as of the [a]pplication [d]eadline." The application deadline for the 2006 funding cycle was February 1, 2006, so the characteristics of the grocery store identified by Petitioner are fixed as of February 1. By letter dated March 2, 2006, Respondent informed Petitioner that it was withholding 1.25 points from its tie- breaker score due to Petitioner's failure to provide the required information as to the proximity of its proposed project to a grocery store. Pursuant to its procedures, Respondent gave Petitioner an opportunity to submit "cure" documentation to demonstrate Petitioner's entitlement to the 1.25 points for proximity to a grocery store. The submittal of "cure" documentation may address issues raised in Respondent's preliminary review of an application but does not extend the date on which the grocery store must be in existence. On April 10, 2006, Petitioner timely filed "cure" documentation identifying the subject grocery store as the Mas Unidos Market at 832 Southeast 8th Street. Accompanying materials indicated that the air-conditioned space was 4547 square feet. By letter dated May 4, 2006, Respondent advised Petitioner that it would receive no points for the proximity of the proposed project to a grocery store because the grocery store identified by Petitioner had less than 4500 square feet of air-conditioned space available to the public. In its final scoring summary, Respondent found that the subject market had less than 4500 square feet of air-conditioned space available to the public. There is no issue as to the proximity of the subject grocery store to the proposed project. The question is whether the subject grocery store meets the definition of a grocery store, as of the application deadline. A sketch that Petitioner submitted to Respondent assists in the analysis. The sketch depicts a 3891 square foot area (Primary Space), which meets all criteria. The Primary Space contains groceries and was air-conditioned and available to the public as of the application deadline. A 656-square-foot area (Additional Space) is separated from the Primary Space by a storage area. If the Additional Space counts toward the area of the grocery store, the subject grocery store would meet Respondent's definition because the Primary Space and Additional Space total 4547 square feet. The owner of the subject grocery store operates a single business from the Primary Space and Additional Space. In doing so, he employs a single set of employees, maintains a single set of financial books, and operates under a single occupational license. On the other hand, the Additional Space is not accessible from the Primary Space, due to the storage area that divides the two areas. The owner of the subject grocery store intends to convert the storage area into a cafeteria, so as to permit interior access between the two spaces, but no such renovation had taken place as of the application deadline. At present, a customer seeking to purchase goods from both spaces must pay for his goods at the one space, leave through the front door, walk a short distance along a sidewalk immediately in front of the two spaces (which occupy a small strip mall), enter the front door of the other space, and pay for his purchases in the other space. Also, the Primary Space contains typical grocery items, but the Additional Space contains items more typically associated with hardware stores. However, these factors, according to an employee of Respondent who testified at the hearing, do not preclude a determination that the Additional Space is part of a grocery store. But the problem with the Additional Space is that it was not available to the public as of the application deadline. The owner of the subject grocery store commenced retail operations in the Additional Space in the fall of 2005, which was prior to the application deadline. However, due to hurricane damage from the 2005 storms, the owner closed the Additional Space for repairs in late 2005 through mid- to late- February 2006, which was after the application deadline. The Additional Space was thus in existence and available to the public as of the application deadline, and Respondent properly excluded the area of the Additional Space in determining whether the store satisfied, as of the application deadline, the criteria of 4500 square feet available to the public. Petitioner contends that the temporary loss of the Additional Space, due to ongoing repairs, should not cause its exclusion from the calculation. The problem with this argument is that it is impossible for Respondent to determine with reasonable certainty whether the owner will complete repairs and reopen the space as a retail grocery operation. The requirement that the space be available to the public on a specific date provides a clear test that is easily administered. The modified requirement for which Petitioner contends creates uncertainty and invites contention as to whether certain space was under repair, the extent of repairs left to complete as of the application deadline, and similar issues that promise prolific litigation, not efficient administration, of the proximity- scoring item. Respondent contends that, if the Additional Space were included, the subject grocery store fails to satisfy the area criterion because the office space behind the Primary Space should not have been included as available to the public. The evidence does not support this contention, although the treatment of the Additional Space in the Recommended Order moots this issue. Directly accessible from the Primary Space, the office space, which totals 107.69 square feet, is separated from the Primary Space by a locked gate. The owner conducts business with customers within the office space, but he must determine, for each customer, whether he wishes to remotely unlock the gate and allow the customer to enter the office space for such purposes as cashing a check. In most cases, the owner makes this determination by viewing the customer through a camera mounted at the gate. If in doubt, the owner leaves the office and meets the customer before escorting the customer to the office, where sums of cash are kept. The security is necessitated by the location of the subject grocery store in a neighborhood afflicted by crime. The presence of the locked gate has not caused Respondent to contend that the adjacent customer bathroom, which is also behind the gate, should not be counted as part of the grocery store, nor should it have this effect as to the office space behind the gate. Petitioner contends that the hallway and bathroom behind the Additional Space should have been included in the area of the subject grocery store. If these areas had been available to the public on the application deadline, this contention would be correct, but the hallway and bathroom were also unavailable to the public on this date. Even if they were included, the total area of the subject grocery store would be only 4085.99 square feet, consisting of 3891 square feet of Primary Space, 107.69 square feet of office space behind the Primary Space, and 87.3 square feet of hallway and bathroom behind the Additional Space. Petitioner has thus failed to prove that it is entitled to any tie-breaker points for proximity to a grocery store.
Recommendation It is RECOMMENDED that the Florida Housing Finance Corporation enter a final order dismissing the Petition Requesting Informal Hearing and Grant of the Relief Requested. DONE AND ENTERED this 27th day of October, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 27th day of October, 2006. COPIES FURNISHED: Hugh R. Brown, Deputy General Counsel Wellington Meffert, II, General Counsel Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 Sherry Green, Corporation Clerk Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 Stephen T. Maher Gary Cohen Shutts & Bowen LLP 201 South Biscayne Boulevard, Suite 1500 Miami, Florida 33131
The Issue The issue posed for decision herein is whether or not the Petitioner is subject to the Florida corporate income tax for tax years 1972, 1973, 1974 and 1975 plus accrued penalties and interest since July 7, 1977, the date Petitioner was mailed a proposed notice, of deficiency by the Respondent, Department of Revenue.
Findings Of Fact Based on the evidence adduced at the hearing herein; the documentary evidence received; the Respondent's memorandum in support of the assessed deficiency; the Petitioner's memorandum in response thereto; and the entire record compiled herein, the following relevant facts are found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent enter a Final Order herein denying Petitioner's protest of the proposed deficiency and penalties as set forth hereinabove. RECOMMENDED this 14th day of March, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 14th day of March, 1983.
Findings Of Fact Petitioner, Edward W. Hayden (herein Petitioner), was employed by Respondent, West Coast Regional Water Supply Authority (herein Respondent or the Authority), from April 19, 1992 until his discharge on May 5, 1993. During the entire period of his employment, Petitioner held the position of Purchasing and Property Records Manager. Respondent is a water wholesaler for the Pinellas, Pasco and Hillsborough tri-county area. Respondent is managed by a general manager, Harold Aiken, who reports to a board of directors which is comprised of elected officials from five member governments. The five member governments are Hillsborough, Pinellas and Pasco Counties, and the Cities of St. Petersburg and Tampa. Four directors report to general manager Aiken. These directors manage different parts of the Authority subject to the direction of manager Aiken. The general manager implements the policies and directives of the board of directors, administers personnel rules and oversees the day-to-day functions of Respondent. The general manager's authority specifically includes the ability to discharge employees. Petitioner, as purchasing and property records manager, was the person charged with overseeing Respondent's property and purchasing functions. Petitioner was responsible for developing and following procedures for purchasing, inventory control and maintenance of property records. In a nutshell, Petitioner was charged with protecting and safeguarding Respondent's assets. Petitioner's specific duties included developing, administering and managing the disposal of surplus property on behalf of the Authority. Petitioner reported to Koni Cassini, Respondent's director of finance, and general manager Aiken. Petitioner was hired because Respondent had experienced some difficulty maintaining inventory control and the management of its assets. In this regard, Petitioner has extensive experience in accounting and logistics management, having earned a bachelor's degree in business management and a master's degree in business administration. Additionally, he has extensive training in inventory control and management techniques. He served in the U.S. Air Force in excess of twenty years as an inventory management specialist and was assigned a number of critically responsible supervisory/leadership positions. Petitioner, while in the Air Force, managed operations as large as 72 assigned personnel and $42 million of inventory within a strict budget of taxpayer dollars. The purchasing, inventory control and property functions of the Authority are carried out through the finance department. The Authority works under a purchase order system wherein each item that is purchased must have a corresponding purchase order. Purchase orders must be approved by various officials within the Authority depending upon the purchase price. As example, if the price of the item to be purchased is anywhere from zero to $500, a manager's signature is required on the purchase order. For items priced between $500 to $1000, a department director's signature is required on the purchase order. For items priced between $1000 to $15,000, the general manager must approve and sign the purchase order. For items priced in excess of $15,000, the board of directors' approval is required to effectuate the purchase. The signatures are required as part of the Authority's checks and balance system which is used to preserve and protect public funds expended by the Authority. Respondent has specific inventory control guidelines which govern the disposal of surplus property. The guidelines encompass six different procedures to dispose of surplus property. The first, and preferred method of surplus disposal, is by donation to one of the five member governments. The Authority uses a second method of disposal of surplus property which is classified as "junk" if it has no value, is beyond repair, and cannot be donated to a member government. A third method of disposal is to sell the property by sealed bid. The sealed bid method is used when either the quality or quantity of the items for sale is insufficient to justify public auction, i.e., the items are without value to the Authority. The most common way of determining whether the property has any value is to conduct a public auction or to "spot bid" the property. The sealed bid method can be utilized by outside vendors and/or employees. The Authority uses the employee sealed bid surplus sale for items that have no value. It is generally understood throughout the Authority that items that are placed in an employee's sealed bid surplus sale are useless to the Authority or have no commercial value whatsoever. Items placed in that sale are items which are basically to be "thrown away". A fourth method of disposal is "spot bidding". This entails contacting buyers, on an informal basis, to determine whether they are interested in bidding on the surplus property. A fifth and another preferred method of disposal is to sell the property via public auction. The Authority has conducted public auctions in the past either by itself or through the use of a private entity, the Tampa machinery auction, which conducts public auctions on behalf of private and governmental bodies. Tampa machinery auction handles all administrative duties, such as advertising, marketing and operations of the auction including collection of proceeds from the sale. The final method of disposal of surplus property is by "trade-in". This method involves obtaining a trade-in value for surplus property when the Authority is purchasing new property. Upon completion of Petitioner's probationary term of employment, a six-month period, his work performance declined considerably. Specifically, Petitioner was assigned the task of drafting a purchasing manual to be used by the board of directors for the board's approval. Petitioner failed to complete the purchasing manual in a timely manner and the director of finance, Koni Cassini, undertook the drafting and completion of the manual. Cassini completed the draft of the manual and it was approved by the board. During February, 1993, Petitioner decided to conduct the employee surplus property sale which is at issue herein. Petitioner's subordinate, James Krug, who held the position of property specialist, compiled a list of surplus property to be sold at Petitioner's direction. Petitioner and Krug circulated the surplus property list to the general manager and the department directors and also notified them of their decision to conduct an employee surplus property sale to dispose of items on the submitted list. Krug prepared the surplus property list which was reviewed by Petitioner. The surplus property sale was the first employee surplus property sale conducted by Petitioner during his tenure as purchasing and property records manager. Petitioner initially considered having a public auction prior to conducting the surplus property sale, but decided against it based on his "busy schedule". When manager Aiken received Krug's memorandum attaching the list of items to be sold in the surplus sale, he noticed that the list included a telecopier machine. He directed his secretary to contact Petitioner to determine the condition of the telecopier machine. Based on his inquiry, manager Aiken learned that the telecopier machine was functional and, therefore, instructed Petitioner to remove it from the list. He subsequently contacted Cassini to advise that the list contained at least one item of value. He directed Cassini to require that Petitioner provide a detailed description of the items on the list including whether the items were functional, non- repairable, or had any value to the Authority. Subsequently, on March 19, 1993, Cassini contacted Petitioner by memorandum and directed that he provide a description of all items on the list as Aiken requested. The surplus sale was to be held on March 24, 1993. On March 22, 1993, Petitioner sent a memorandum to Cassini stating that he would not provide the requested description of the items for the current sale, but would do so at the next time that the Authority had a surplus sale. At that time, Petitioner assured Cassini that there were no items of value on the current list. Cassini did not follow up on her March 19, 1993, memorandum based on Petitioner's assurance that there were no items of value remaining on the surplus list. Petitioner conducted the surplus property sale, which sale included several items of value including three trench safety units, a three-ton air conditioning unit and a refrigerator. Trench safety units are suspension systems that are used to lower workers into the ground to inspect and repair open pipes. The trench safety units cost Respondent $5,000 each when purchased new during 1990. The surplus property list described the trench safety units as "mini- lift systems". Petitioner described the trench safety units in this manner, even though employees of the Authority referred to the units as "trench safety units" and not "mini-lift systems". Petitioner advised several Authority personnel, including manager Aiken and Cassini, that all of the items on the surplus property list were in rough to poor condition and had no value. As example, he advised the Authority's personnel manager, Holly Manning, that the items on the surplus list were "junk". Respondent purchased the trench safety units for a pipeline investigation in 1990 at the direction of Allison Adams, the Authority's special projects coordinator. The Authority only utilized the safety units during that investigation; however, it could and intended to utilize the safety units in the future for the maintenance of underground pipes or to conduct other subterranean investigations. Petitioner did not contact either the member directors or the general manager for authorization to dispose of the safety units. Likewise, Petitioner did not contact the member governments to determine whether they could use the safety units, nor did he attempt to obtain any sealed bids on the safety units other than through the employee surplus sale. Petitioner did not "spot bid" the safety units prior to including them in the employee surplus sale. Petitioner also listed a three-ton air conditioning unit in the employee surplus sale, despite the fact that it was in good operating condition and had a value of approximately $1,500. Although it was his duty to know all items of value on the surplus sale, Petitioner did not have any idea of the value of the air conditioning unit. Likewise, Petitioner did not spot bid the air conditioning unit prior to including it in the surplus property sale. Two Authority employees purchased the three trench safety units through the sale. Jim Krug, the property specialist who included the units in the surplus property list, purchased one of the units for $223. The other two safety units were sold to Rick Minjarez, a water plant operator, for $175 each. The safety units were in good condition when they were sold. Within ten days of purchasing the safety units from the Authority, Krug and Minjarez sold the items to an outside vendor, who had engaged in business with the Authority in the past, for $1,000 per unit. Cassini conducted an investigation when she learned that the surplus sale had been conducted and that items of value had been sold. Based upon her initial investigation, Cassini recommended that Petitioner and Krug be put on administrative leave without pay pending the outcome of her investigation. Petitioner and Krug were then given an opportunity to explain why the safety units and other valuable property items were included in the sale contrary to his assurance. After Hayden and Krug received pre-termination hearings, Aiken terminated Hayden and Krug on May 5, 1993, based upon Cassini's recommendation. Aiken issued Minjarez a written reprimand for his part because of his failure to bring to the Authority's attention the fact that the items which he purchased were "items of value". Minjarez was not discharged because of Respondent's determination that he was not specifically responsible for protecting the Authority's assets and did not prepare the list of items which were sold. (Minjarez and Krug's disciplinary action is not at issue herein). Petitioner was recommended for discharge by Cassini based upon the fact that he was hired to oversee the purchasing and property functions of the Authority and he failed to fulfill his duties in that regard. Cassini also determined that, by Petitioner's actions, he was insubordinate and misused the Authority's assets to its detriment. Finally, Cassini recommended that Petitioner be discharged because of his insubordination and his failure to comply with her directive that he protect the property interests of the Authority.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent enter a final order dismissing Petitioner's petition for relief and terminate him from employment. DONE and ENTERED this 21st day of January, 1994, in Tallahassee, Leon County, 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 21st day of January, 1994. COPIES FURNISHED: Harold Aiken, General Manager West Coast Regional Water Supply Authority 2535 Landmark Drive, Suite 211 Clearwater, Florida 34621 Thomas M. Gonzalez, Esquire Gregory A. Hearing, Esquire THOMPSON, SIZEMORE Post Office Box 639 Tampa, Florida 33601 Edward W. Hayden 505 Hedgerow Brandon, Florida 33510 Edward P. de la Parte, Jr., Esquire DE LA PARTE & GILBERT One Tampa City Center, Suite 2300 Post Office Box 172537 Tampa, Florida 33672-0537
