Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a Final Order and therein: Dismiss Counts III-XIX of the Administrative Complaint. Suspend the license of Keith Allen Miller for 90 days and impose a fine of $2,000 based upon Counts I and XX of the Administrative Complaint. Suspend the license of Keith Miller Realty Company for 90 days and impose a fine of $2,000 based upon Counts II and XXI of the Administrative Complaint. DONE and ENTERED this 18th day of December, 1986, in Tallahassee, Florida. DIANE K. KIESLING 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 18th day of December, 1986. COPIES FURNISHED: Howard Hadley, Esquire 827 Deltona Boulevard Deltona, Florida 32725 James H. Gillis, Esquire Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Harold Huff, Executive Director Department of Professional Regulation Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32802 Fred Roche, Esquire 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact Until December of 1974, respondent William W. Lambert did business as a general contractor under the corporate name of Lambert Enterprises, Inc. As qualifying agent for the corporation, he built homes, poured concrete, laid sod, and did other general contracting. During 1974, respondent was in the process of acquiring a sod farm, as well as being engaged in the general contracting business. Lambert Enterprises, Inc. dealt largely with other contractors. When The Commonwealth Corporation went bankrupt, other contractors, notably the Collins brothers, also ended up in bankruptcy, and unable to make good on outstanding obligations to Lambert Enterprises, Inc. Respondent caused a voluntary petition in bankruptcy to be filed on behalf of Lambert Enterprises, Inc., on November 22, 1974. At that time he held all the stock in Lambert Enterprises, Inc., and served both as president and as a member of the board of directors of the corporation. Respondent Lambert has never been interested in any other corporation that has been declared bankrupt, and has never gone into bankruptcy personally. Mr. William E. Wingate, an investigator for the Florida Construction Industry Licensing Board, checks bankruptcy records twice monthly. By looking through bankruptcy records, he has learned of ten to twelve bankruptcies, in the Northern District of Florida, involving contractors in the last two years. He may have missed some, but every time he finds out about a contractor's bankruptcy, he reports it to the Board's Jacksonville office. On July 31, 1975, he first learned of respondent's corporation's bankruptcy. He obtained certified copies of pertinent papers which he then forwarded to other Board staff in Jacksonville. After Lambert Enterprises, Inc. failed, respondent obtained a general contractor's license as an individual, which is currently in force. Since December of 1975, respondent has been employed by Century Construction, first in Tallahassee, then in Jacksonville, where he is now a project manager for the company. Permits for work performed by Century Corporation are not pulled on respondent's license. Respondent's financial condition is now stable, and he is financially sound.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent be reprimanded. DONE and ENTERED this 25th day of April, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida COPIES FURNISHED: Barry S. Sinoff, Esquire Blackstone Building, Suite 1010 Jacksonville, Florida 32202 Daniel J. Wiser, Esquire Post Office Box 10137 Tallahassee, Florida 32302 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board 1010 Blackstone Building Jacksonville, Florida 32202
The Issue By these consolidated actions, the Petitioners seek to recover attorney's fees and costs as alleged prevailing small business parties under authority set forth in Section 57.111, Florida Statutes.
Findings Of Fact In accordance with Chapter 380, Florida Statutes, the Department of Community Affairs (Department), at times relevant to this inquiry, has maintained the duty and responsibility to enforce and administer that law. Following entry of the subject Development Order on March 23, 1976, Leon County, Florida, became responsible for administering that Development Order in accordance with Chapter 380, Florida Statutes. The Development Order had been issued upon application by Killearn Properties, Inc., the principal developer. Through property conveyance, the principals within Kinhega Landing and Kinhega Oaks purchased parcels within the geographical boundaries of the development of regional impact (DRI) authorized by Chapter 380, Florida Statutes, and the subject of the Development Order. The property transactions pertaining to the parcels purchased by the Kinhega landing and Kinhega Oaks groups, when recorded in the property records for Leon County, Florida, did not reflect the existence of the Development Order, nor did any history of the chain of title indicate that the parcels were within the DRI. The record does not reflect that the developer, Killearn Properties, Inc., and other persons subsequently involved with the conveyance of the subject parcels purchased by the Kinhega Landing and Kinhega Oaks principals made the Kinhega Landing and Kinhega Oaks groups aware that the parcels being purchased were within the DRI. The Development Order contained a requirement that the DRI be served by a wastewater treatment facility from the inception. The Development Order did not allow the use of septic tanks for individual lots as an interim measure pending the availability of wastewater treatment service through a central plant. Contrary to the requirements set forth in the Development Order, certain restrictive covenants recorded within the public records of Leon County, Florida, pertaining to the parcels purchased by the Kinhega Landing and Kinhega Oaks groups indicated that septic tanks could be utilized. The Kinhega Landing and Kinhega Oaks groups were mindful of the restrictive covenants which allowed the use of septic tanks. This knowledge was gained through an examination of the public records of Leon County, Florida. Moreover, in seeking preliminary plats, the principals for Kinhega Landing and Kinhega Oaks were subsequently issued preliminary plats, pursuant to conditions which allowed the use of septic tanks for individual homeowners and lots pending the availability of wastewater treatment through a central service. Notwithstanding the fact that Leon County was responsible for administering the Development Order and acting consistent with its terms, the Leon County employees who issued the preliminary plats knowingly acted contrary to the terms set forth in the Development Order by allowing septic tanks, instead of requiring the provision of wastewater treatment through central service. Neither did the Leon County employees apprise the Kinhega Landing and Kinhega Oaks groups that the Development Order existed, and thereby allow those groups to make their own determination concerning the consistency of the preliminary plats when measured against the requirements set forth in the Development Order. Chapter 380, Florida Statutes, as it existed when the Development Order was issued did not mandate that the Development Order be recorded in the public records of Leon County, Florida. The amendments which were made to Chapter 380, Florida Statutes, following the date upon which the Development Order was entered did not retroactively mandate the need to record the existence of the Development Order in the public records of Leon County, Florida. That fact taken together with the inability to ascertain the existence of the Development Order through property records related to the specific parcels purchased by the Kinhega Landing and Kinhega Oaks groups, the failure by the initial developer, Killearn Properties, Inc., and others who had been involved with the subject parcels to advise the Kinhega Landing and Kinhega Oaks groups that the parcels being purchased were subject to a Development Order, and the failure by Leon County officials to advise the Kinhega Landing and Kinhega Oaks principals that the parcels were subject to a Development Order, establishes that the Kinhega Landing and Kinhega Oaks groups were without actual or constructive notice of the requirement to provide central wastewater service. To the contrary, Leon County employees provided advice that specifically violated the terms set forth in the Development Order, in a setting in which the Leon County officials were charged with the responsibility to act consistent with the terms set forth in the Development Order. This leads to the conclusion that the Kinhega Landing and Kinhega Oaks groups could not reasonably have ascertained that the Development Order existed as a means of avoiding actions that were inconsistent with the Development Order. This finding also takes into account that the property records reflecting restrictive covenants, as they would inform the public, allowed the use of septic tanks and coincided with the development permission given by the planning officials within Leon County. When investigating and deciding to bring the Notice of Violation, the Department spent considerable time in discussion with the Killearn Properties, Inc., principals. It had no contact with the Kinhega Landing and Kinhega Oaks principals. The Department also met with Leon County concerning the County's administration of the terms of the Development Order. The Department never asked anyone employed by Leon County whether County employees had told the Kinhega Landing and Kinhega Oaks groups that a Development Order had been entered which limited the manner in which development could be pursued, to include the inability to use septic tanks on individual homeowner lots. Neither does it appear that the Department interrogated the principals for Killearn Properties, Inc. concerning whether those individuals had told the principals at Kinhega Landing and Kinhega Oaks that the parcels purchased by the latter groups were under restrictions and were subject to requirements set forth in the Development Order. Nor does it appear that the Department interrogated anyone else concerning advice to these groups about the existence of the Development Order. The Department was aware that the preliminary plats for Kinhega Landing and Kinhega Oaks allowed the use of septic tanks until central sewer service became available and held the opinion that this arrangement violated the requirement to provide wastewater treatment service from a central location from the inception of the DRI. Although the Department has stated that it decided to name Kinhega Landing and Kinhega Oaks in the Notice of Violation to bring before the administrative tribunal all parties necessary for an adjudication of rights and remedies in the overall DRI, in fact, the Department did not name all parties who had property rights subject to the DRI when seeking enforcement through the Notice of Violation. Moreover, it did not occur to the Department that it would be advisable to inquire of the principals within Kinhega Landing and Kinhega Oaks concerning their knowledge of the existence of the Development Order. As stated, the Department had no realization concerning whether the County had advised the principals within Kinhega Landing and Kinhega Oaks regarding the existence of the Development Order when those entities applied for preliminary plats. The Department, when deciding to bring the Notice of Violation against Kinhega Landing and Kinhega Oaks, made note of the conditions associated with the issuance of the preliminary plats wherein it was anticipated that the individual homeowners would need to tie into central sewer service when it was made available. The Department then assumed that it was common knowledge in the development community that the property encompassed within the DRI, to include Kinhega Landing and Kinhega Oaks parcels, was under a Development Order. In addition to looking at the Leon County plat records concerning the Kinhega Landing and Kinhega Oaks parcels, which reflected the permission to use septic tanks subject to availability of central wastewater service, the Department did "some title work" related to the Kinhega Landing and Kinhega Oaks parcels. None of the activities can be seen to educate the Department as to the existence of a Development Order which knowledge could be imputed to Kinhega Landing and Kinhega Oaks principals. The Department was aware that the Development Order had been issued in 1976 at a time when there was no requirement to record the Development Order in the public records of Leon County, Florida. Further, the Department knew that the Development Order had not been recorded in the public records of Leon County, Florida. At the point in time where the decision was being reached to name Kinhega Landing and Kinhega Oaks in the Notice of Violation, the Department assumed, without rational basis, that Leon County affirmatively stated to Kinhega Landing and Kinhega Oaks that the parcels held by those entities were within the DRI. At hearing, concerning the request to be reimbursed for attorney's fees and costs, counsel for the Department who was principally responsible for the case involving the Notice of Violation was uncertain whether the Department of Community Affairs had inquired of Leon County concerning whether Leon County had made Kinhega Landing aware of the existence of the Development Order. Moreover, the Department of Community Affairs assumed that because the Development Order did not allow the use of septic tanks and that the preliminary plats allowed the use of septic tanks on an interim basis, this was seen as evidence that Leon County had brought the existence of the Development Order to the attention of Kinhega Landing and Kinhega Oaks. Such assumption lacked any rational basis. The present Petitioners learned of the existence of the Development Order when served with the Notice of Violation. The Department of Community Affairs became aware that the Kinhega Landing and Kinhega Oaks groups did not know of the Development Order after the Department of Community Affairs had filed the Notice of Violation, and notwithstanding that knowledge continued to pursue the underlying action. When deciding to file the Notice of Violation against Kinhega Landing and Kinhega Oaks, the Department was not aware of any specific legal authority which would support the conclusion that purchasers without notice of the existence of the Development Order would nonetheless be bound by the Development Order and could not defend themselves against acts taken contrary to the Development Order, such as installation of septic tanks in a setting in which the Development Order only allowed wastewater treatment through a central service. Without regard for specific precedent concerning the legal question of whether bona fide purchasers for value, purchasers without knowledge of the Development Order, could defend their actions which were inconsistent with the Development Order, the Department proceeded with its Notice of Violation because it declined to resolve the question of whether those purchasers would nonetheless be held to comply with the Development Order. The Kinhega Landing and Kinhega Oaks principals are prevailing same business parties whose respective expenses in defending the notice of violation exceed $15,000.00. In summary, the Department of Community Affairs was aware that Kinhega Landing and Kinhega Oaks principals were not subject to constructive notice concerning the existence of the Development Order when charging Kinhega Landing and Kinhega Oaks principals with the notice of violation. The Department of Community Affairs failed to establish whether the Kinhega Landing and Kinhega Oaks principals had actual knowledge of the existence of the Development Order prior to bringing the Notice of Violation against those parties and the assumptions which the Department of Community Affairs made concerning actual notice by Kinhega Landing and Kinhega Oaks principals were not reasonable assumptions, especially when relying on Leon County to impart knowledge in a setting in which the Department of Community Affairs had concluded that Leon County had violated the Development Order in its own right, when allowing septic tanks to be used in lieu of wastewater treatment through central service. Misfeasance by Leon County in relation to that topic did not create the proper inference that Kinhega Landing and Kinhega Oaks principals were willing participants in that course of conduct. Kinhega Landing and Kinhega Oaks principals were not aware of the existence of the Development Order prior to being charged with the Notice of Violation.
The Issue Whether Respondent's license as a residential contractor should be suspended, revoked, or the licensee otherwise disciplined for alleged violation of Subsections 468.112(2) (h) and 489.129(1)(k), F.S. as set forth in the Administrative Complaint dated July 7, 1981. This case was consolidated for purposes of hearing with DOAH Case No. 81- 2491 involving an administrative complaint by the Board of Real Estate against the same Respondent arising out of the same transaction. The complaint herein alleges that Respondent, a licensed residential contractor and qualifying registrant for CAT Development Inc., contracted to build a dwelling for Jenny Soto, received full payment under the contract, but abandoned construction prior to completion, and has not corrected continuing deterioration of the property. It is therefore alleged that Respondent violated Subsection 468.112(2)(h), Florida Statutes, (Supp. 1978) and its successor statute Subsection 489.129(1)(k) F.S. (1979).
Findings Of Fact Respondent Catherine W. Grabhorn is a licensed real estate broker, doing business as CAT Realty Company at East Palatka, Florida. She was so licensed at all material times alleged in the Administrative Complaint. (Testimony of Respondent) Respondent is also a certified residential contractor operating as CAT Development, Inc. at East Palatka, Florida, and was so licensed at all material times alleged in the Administrative Complaint. (Testimony of Respondent) In October, 1978, Jenny Soto, Bronx, N. Y., accompanied other prospective land purchasers to Palatka, Florida, where she was shown and purchased a lot for $10,000 at a development known as P & B Ranchettes. The group had traveled to Florida in a van. After the land purchase, the driver of the van took Soto and the others to Respondent's combination real estate and construction firm office where Respondent showed the group a catalog of various homes for possible construction on the lots which had been purchased. Soto saw a split level design that she liked, and Respondent told her that she could build it for $43,000, with the garage and the below ground level part of the split level to be unfinished, and without appliances. A contract was entered into between Respondent as President of CAT Development, Inc. and Soto on October 22, 1978. The contract provided for payments of $13,000 on October 24th, $25,700 on November 12th and the balance of $4,300 due on completion of the house. However, no completion date was stated in the contract. (Testimony of Respondent, Soto, Petitioner's Exhibits 16-19) On October 24, 1978, Respondent flew to New York City to obtain the initial payment under the contract. Soto met her at the airport and paid $13,000. At that time, Soto asked Respondent when house construction would commence, and Respondent indicated that she needed additional money for materials. On November 30, 1978, the parties entered into a new contract to add additional features to the house, including a finished downstairs and garage, and appliances. The new contract price was $47,600, which reflected that $13,000 had been paid, $20,000 was due on December 1, 1978, $10,000 due on January 15, 1979, and the balance of $4,600 due on completion of the house. Again, no time for completion was stated in the contract. Pursuant to the agreement, Soto paid Respondent $20,000 on December 1, 1978 in New York City where the contract was signed. At some undisclosed date thereafter, Soto decided she wanted to upgrade the carpeting and appliance allowances, and the parties entered into an oral agreement for a total contract price of $53,000. (Testimony of Respondent, Soto, Petitioner's Exhibits 19-22) On January 4, 1979, Respondent obtained a Putnam County building permit for the Soto project, and plumbing and electrical permits were obtained by subcontractors later that month. Construction commenced on the house and it was discovered that the ground water table was close to the surface of the land and there would be drainage problems. However, Respondent told Soto that she would be able to cure the problem by pumping out the standing water in the area. On January 26, Respondent again went to New York and obtained a $10,000 payment from Soto. In February, Soto visited the construction site and observed that standing water near the house was "like a lake". Soto visited the house again in March and gave Respondent the final $10,000 payment on the contract price. At that time, the house was substantially completed and there was no apparent water damage. Respondent told Soto that it would take a couple of months to finish construction. It appeared to Soto then that the only remaining work to be done was to install carpeting, light fixtures, and appliances. Several county inspections were made as the work progressed during January and February, 1979, and it was determined, after certain minor corrective measures, that the work was being performed satisfactorily. (Testimony of Durbin, Michaels, Soto, Respondent, Petitioner's Exhibits 1-3, 23-24) During ensuing months, Soto periodically telephoned Respondent to ascertain when the home would be completed, and on these occasions Respondent promised that the house would be completed within thirty days. However, no further work has been done by Respondent, except to obtain approval of a temporary electrical pole in June, 1981. At that time, the county building inspector observed that there was a considerable amount of standing water around the house, and that the outside of the building had deteriorated. Siding was warped and pulled away, the front door was open, and some wrought iron was located in a nearby ditch. (Testimony of Soto, Respondent, Durbin, Petitioner's Exhibit 3) In response to a request by Soto in 1980 concerning the market value of the house, Respondent wrote her on July 1, 1980 that the home was 90 to 95 percent complete and that completion was anticipated "as soon as possible". On May 28, 1981, the building permit was extended by the county to August 31, 1981. In July of that year, Soto visited the property and observed that a lock was missing from the door, mud was present in the lower level, sheetrock on the walls had rotted out, and the kitchen cabinets were missing, apparently due to vandalism. Soto saw the Respondent and asked her why the property was in that condition, and Respondent told her that she had no money because workmen on the project whom she had paid had "run off" with the money. During this visit, Respondent provided Soto with a written statement that the said house would be completed within sixty days, which would be September 20, 1981, unless prevented by "some act of God". (Testimony of Respondent, Soto, Michaels, Petitioner's Exhibits 14, 15, 25) On September 1, 1981, the county building official wrote to Respondent and advised her that the permit extension had expired the previous day and that new permits would be required to complete the work. The letter also stated that if substantial work was not evident within ten days from her receipt of the letter, he would be forced to conclude that she had effectively abandoned the project and he would bring the matter to the attention of the county contracting board, and to the Florida Construction Industry Licensing Board. Complaints by Soto to the building official of Putnam County resulted in a letter written to him on January 14, 1982 by Respondent wherein she stated that she had not been able to do anything about the Soto house due to her financial situation, but that she hoped to be able to finish the project within the next thirty to sixty days. (Testimony of Michaels, Petitioner's Exhibits 10, 11) On February 18, 1982, the county building officials went to the project site and found further evidence of deterioration, but no indication that any corrective or preservative work had been accomplished. Doors and windows were missing from the house, siding and fascia board were warped and pulled away, and several panels had fallen from the side of the house. A ditch had been dug around the house and there was standing water in it. Inside, it was observed that gypsum board had been removed from the walls, and in the lower level water stains were evident sixteen to eighteen inches above the flooring. Roof trusses had been broken and structural integrity had deteriorated with rotted 2 x 4 lumber forming bearing walls. It was further noted that kitchen cabinets had been removed from the property. (Testimony of Durbin, Michaels, Petitioner's Exhibits 4-9) Although construction of the house was substantially completed at the time Respondent ceased work, the remaining cost of installing heating and air conditioner units, kitchen appliances, washer/dryer, bathroom and lighting fixtures, pump for septic tank, and carpeting is estimated at approximately $13,000. Additionally, to correct the present deficiencies and procure new windows, kitchen cabinets, and other vandalized property, would require a substantial, but unknown additional cost. Respondent estimates that it would take about $10,000 to $15,000 to complete the house. (Testimony of Michaels, Respondent) Since commencing construction on the Soto house in January, 1979, Respondent has obtained permits and completed construction on nine single family homes, the last permit being issued as recently as January 20, 1982. No complaints have been received by the Putnam County building department on these projects. (Testimony of Michaels, Petitioner's Exhibit 12) Respondent testified at the hearing and conceded that she had not completed the Soto house, but attributed her failure to "cash flow" problems which had resulted in financial inability to complete the work. Respondent had deposited all of the money paid to her by Soto in her general banking account. This account was used for expenditures on the Soto house, as well as other concurrent projects. Respondent produced a statement of expenditures on the Soto house in the amount of $47,000. However, this statement reflected that Respondent had included airplane fare for two trips in the total amount of $434. These trips were made to pick up checks from Soto in New York. Respondent stated that other costs for fill, construction of a ditch, and rock would not have been necessary if she had followed later advice as to the water problem on the property, and installed a sump pump and "french" drains. She further stated that on various occasions she would lock the house, but each time when she went back the locks would have been stolen, and that although she reported vandalism to the police, the problem continued. Respondent admitted that she had made promises to Soto to complete the house which she had not kept, but that she had never intended to take her money and not perform the work under the contract. She underestimated the cost of building the house due in part to her unfamiliarity with the particular design of the Soto house. (Testimony of Respondent, Petitioner's Exhibits 13, 29)
Recommendation That Respondent's license as a residential contractor be suspended for a period of six months. DONE and ENTERED this 25 day May, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 25th day of May, 1982. COPIES FURNISHED: James Quincey, Esquire Post Office Box 1090 Gainesville, Florida 32602 William N. Gambert, Esquire 630 North Wild Olive Avenue Daytona Beach, Florida 32018 Mr. James Linnan Executive Director Florida Construction Industry Licensing Board P. O. Box 2 Jacksonville, Florida 32202 Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue The issue in this case is whether Rule 15A-10.043, Florida Administrative Code, and certain forms incorporated therein, constitutes an invalid exercise of delegated legislative authority to the extent that the rule interprets the term "drug" to include alcohol.
Findings Of Fact The following facts, stipulated to by the parties in the Stipulated Facts, are hereby accepted: On March 16, 1993, Lee Eyer was convicted of his second DUI within 5 years, and his license was suspended for a period of five years (5) pursuant to section 322.28(2)(a)2, Florida Statutes. Under section 322.271(2)(b), Florida Statutes, a person whose license has been suspended for a period of 5 years or less may seek a reinstatement of a license for employment purposes (known as a hardship license). The statutory language requires that the person seeking the hardship license must "have been drug free for a least 12 months immediately prior to such reinstatement " Pursuant to Lee Eyer's request for a reinstatement of driving privileges restricted to business and employment purposes (hardship license), a hearing officer of the [Department of Highway Safety and Motor Vehicles] conducted an administrative hearing on January 24, 1997. (Exhibit A). Pursuant to the direction of the hearing officer, Lee Eyer went to Bridgeway Center, Inc., in Ft. Walton Beach, Florida, on February 18, 1997, for the purpose of being evaluated for admission to its Special Supervision Services (SSS) Program, completion of which is required by the [Department of Highway Safety and Motor Vehicles] in order to receive a hardship license. As part of the initial screening for the SSS Program at Bridgeway Center, Mr. Eyer completed a questionnaire, HSMV Form 72748 (re- numbered in 1/97 as Form 77013), on which he indicated that he consumes alcohol "4/week" and that he drank a beer on January 22, 1997. (Exhibit B). At the time of his initial screening at Bridgeway Center, Mr. Eyer was given DHSMV Form 72062 (11/96), which states that an applicant "[m]ust not have consumed any alcohol or drugs . . . for 1 year prior to reinstatement." (Exhibit C). Additionally, Mr. Eyer was given DHSMV Form 72747 (re-numbered in 1/97 as Form 77012), which states that "[a]n applicant with a revocation of 5 years or less must have not used any drugs for at least the past twelve (12) months. Drugs include alcohol . . . ." (Exhibit D). By letter dated February 19, 1997, Mr. Eyer received written notice that he was denied entry into the DUI SSS Program because of his "reported last use of alcohol on [1/22/97]." The letter further stated that he must be "drug/alcohol free for a minimum of one year prior to acceptance" into the SSS Program. (Exhibit E). Through section 15A-10.043, Florida Administrative Code (1997), the [Department of Highway Safety and Motor Vehicles] specifically adopts and incorporates by reference Forms 77012 (formerly numbered 72747) and 77013 (formerly numbered 72748). On March 3, 1997, Lee Eyer filed a rule challenge petition with the Division of Administrative Hearings. After a hearing on March 31, 1997, Mr. Eyer was given leave to file an amended petition, which was filed on April 4, 1997. Pursuant to a hearing on May 16, 1997, Petitioner was given leave to file a second amended petition, which was filed on May 20, 1997, and which alleged that the rule promulgated by the [Department of Highway Safety and Motor Vehicles] was an invalid exercise of delegated legislative authority. Should Lee Eyer be successful in his rule challenge, he intends to seek admission into the SSS Program offered by Bridgeway Center, Inc., in Fort Walton Beach, Florida. The following facts, which were contained in the Petition for Leave to Intervene filed by the Florida Association of D.U.I. Programs, Inc. (hereinafter referred to as "FADP"), and stipulated to by the parties, are hereby accepted: . . . . FADP is a not-for-profit Florida corporation. Its membership is composed entirely of licensed DUI programs. FADP's primary goal is to enhance the safety of all Floridians through a strong statewide system of DUI enforcement, education and treatment. FADP seeks to achieve this goal by promoting high standards and uniformity in all licensed DUI programs throughout the state, and by promoting substance abuse safety education related to drinking, drugs and driving. FADP represents its members by means of education, public relations, and participation in legislative activities, administrative proceedings, and court litigation. FADP has 24 member programs, all of which are licensed DUI programs. FADP and its members will be substantially affected by any interpretation of the rules at issue in this proceeding because FADP and its members are subject to regulation by the rules, and because DUI programs must apply the challenged rule to DUI offenders on a regular basis. Bridgeway Center, Inc., the DUI program to which Petitioner applied and was denied admission pursuant tot he challenged rule, is a member of FADP. The relief sought by FADP in this proceeding is appropriate for an association to receive on behalf of its members. Pursuant to the Second Amended Petition Seeking Administrative Determination of Validity of Rule filed in this case, Mr. Eyer has challenged Rule 15A-10.043, Florida Administrative Code, to the extent that it adopts by reference HSMV Forms 77012 (formerly numbered 72747), 77013 (formerly numbered 72748), and 72062 (hereinafter referred to as the "Challenged Rule"). The Challenged Rule is a rule adopted by Respondent, the Department of Highway Safety and Motor Vehicle (hereinafter referred to as the "Department"), to implement Section 322.271(2)(b), Florida Statutes. In pertinent part, Section 322.271(2)(b), Florida Statutes, provides that "the Department shall require [applicants for a restricted driver license] to have not driven and to have been drug free for at least 12 months immediately prior to such reinstatement. . . ." In implementing this language, the Department has provided the following on HSMV Form 72062, "Administrative Hearing Requirements for Revocations" for persons who have been convicted of a second DUI conviction within 5 years of the first conviction: 2. Must complete DUI school and be enrolled in DUI Special Supervision Services and receive a favorable evaluation from that program . . . . . . . . Must not have consumed any alcohol or drugs or driven a motor vehicle for 1 year prior to reinstatement* . . . . *Drugs include alcohol and those so-called non- alcoholic beers or wines which contain less than .5% of alcohol. . . . HSMV Form 77013 (formerly numbered 72748) is a "Screening Form" completed at the time of registration at the DUI Special Supervision Services school. In pertinent part, this form provides the following: 5. How often do you presently consume alcohol, including the so-called non-alcoholic beers or wines which contain less that [sic] 0.5% of alcohol? HSMV Form 77012 (formerly numbered 72747), an "Information Sheet," is also provided at the time of registration. In pertinent part, this form provides the following: An applicant with a revocation of 5 years or less must have not used any drugs for at least the past twelve (12) months. Drugs include alcohol and those so-called non-alcoholic beers or wines which contain less than .5% of alcohol. . . . Mr. Eyer is challenging the Department's interpretation of the term "drug" as used in Section 322.271(2)(b), Florida Statutes, to include alcohol.
The Issue The issue in this case is whether Respondent committed a discriminatory housing practice in violation of chapter 760, Florida Statutes (2010). All statutory references will be to Florida Statutes (2010), unless otherwise indicated.
Findings Of Fact On or about November 18, 2010, Petitioner filed a Housing Discrimination Complaint. The complaint was the second or third of such complaints filed encompassing the same or similar issue: Petitioner's desire to have a laundry within his personal condominium unit. Pursuant to FCHR procedure, an investigation of the matter was completed that resulted in a Notice of Determination of No Cause. Essentially, FCHR found that based upon the allegations raised by Petitioner, there was no cause from which it could be found that Respondent had violated the Florida Fair Housing Act. Thereafter, Petitioner elected to file a Petition for Relief to challenge the determination and to seek administrative relief against Respondent for the alleged violation. FCHR then forwarded the matter to DOAH for formal proceedings. Petitioner and his wife own and reside in a condominium unit on the second floor of the Ocean Park Condominium complex. The property is located in Brevard County, Florida, and is subject to covenants and restrictions adopted at the time the unit was converted from an apartment to a condominium. There is no elevator to service Petitioner's second-story unit. Previously, the building and all units therein were designed and occupied as rental apartments. Although the property was converted several years ago, the basic structure of the building was not materially changed. The condominium complex has amenities that include a commonly owned laundry facility. At all times material to the allegations of this case, Petitioner knew or should have known that a laundry could not be located within his unit as no owner may lawfully have a laundry. Further, it was evident to Petitioner that his unit was located on the second floor accessed only by stairs at the time he purchased the condominium. Although Petitioner's unit is plumbed and wired for a washer and dryer, the laundry connections were not constructed in accordance with, or approved by, condominium rules and regulations. Should Petitioner attempt to connect a washer and/or dryer within the unit, Respondent would take legal action to enforce the condominium rules and seek an injunction prohibiting the use of the appliances. Respondent does not believe the units were constructed so that each unit could have laundry facilities. Additionally, Respondent will take legal action to remove laundry facilities found in any unit of the complex. Petitioner is 90+ years old and announced that hauling laundry from his second-story unit to the common laundry facility is difficult, if not impossible for him to continue to do. Petitioner has numerous medical conditions that make climbing stairs and carrying laundry very difficult. Additionally, Petitioner's wife has medical issues that preclude her from transferring the laundry down and back to the condominium unit. Although the medical evidence submitted by Petitioner is hearsay, it is accepted that Petitioner and his wife have great difficulty navigating to their second-story unit. It is also accepted that carrying laundry to and from the laundry facilities would be a great burden to them. Petitioner previously filed a complaint against Respondent and asked for relief based upon disability or handicap, since neither he nor his wife can do laundry as prescribed by the condominium. In settlement of the prior complaint with FCHR, Respondent agreed to provide an aide to Petitioner who will carry the laundry down from Petitioner's unit to the condominium laundry, and return the laundry up to the apartment. Petitioner must do the actual work of loading, unloading, and preparing the laundry for return to the unit. The parties voluntarily executed a Conciliation Agreement that provided, in pertinent part: It is understood that this Agreement does not constitute an admission on the part of the Respondent that it violated the Fair Housing Act of 1983, as amended. Complainant agrees to waive and release any and all claims against the Respondent with respect to any matters which were or might have been alleged in the complaint filed with the Commission or with the United States Secretary of Housing and Urban Development, and agrees not to institute a lawsuit based on the issues alleged in these complaints under any applicable ordinance or statute in any court of appropriate jurisdiction as of the date of this Agreement. Said waiver and release are subject to Respondent’s performance of the premises and representations contained in 1a, 1b, and 2b herein. After entering into the conciliation agreement, Petitioner, his wife, and Respondent executed a Settlement of Laundry Complaint. Petitioner did not employ a lawyer to give him legal advice before signing the conciliation agreement or the settlement agreement. The settlement outlines the terms upon which Respondent is to provide assistance to Petitioner to facilitate laundry duties. Petitioner claims the only acceptable remedy at this time, is to allow Petitioner to connect a washer and dryer within his unit so that he and his wife may do laundry without leaving their home, and at such times as they may wish to perform the laundry. Petitioner maintains that this remedy will eliminate the expense of paying the aide to assist him and will be an overall savings to the condominium association. Respondent maintains that it is willing to abide by the terms of the settlement agreement previously reached with Petitioner and that the terms of the settlement control the instant case. Further, Respondent asserts no facts support a legal basis for setting aside the agreement. The only changes in circumstances since the execution of the settlement are: Petitioner is older, Petitioner and his wife are more infirm, and Petitioner does not want to have to schedule the laundry as previously agreed, due to medical appointments. With the exception of the number of medical appointments, all of the "changed circumstances" were reasonably foreseeable at the time the settlement was signed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's claim of discrimination, but reminding Respondent of the terms of the parties' agreement regarding accommodation for Petitioner's laundry needs. DONE AND ENTERED this 3rd day of May, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 3rd day of May, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Sebastian Barbagallo 311 Taylor Avenue, Apartment G19 Cape Canaveral, Florida 32920 Joe Teague Caruso, Esquire The Law Offices of Caruso, Swerbilow & Camerota, P.A. 190 Fortenberry Road, Suite 107 Merritt Island, Florida 32952 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondents (“Dobson’s” and “Western Surety”) should be required to pay an outstanding amount owed to Petitioner, Doug Lancaster Farms, Inc. (“Lancaster Farms”).
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, and matters subject to official recognition, the following Findings of Fact are made: Oden Hardy was the general contractor for a project in Apopka, Florida, known as the Space Box project. Dobson’s, a subcontractor on the Space Box project, contracted to purchase 269 trees (including Live Oaks, Crape Myrtles, Elms, and Magnolias) for $53,245.00 from Lancaster Farms. Dobson’s supplied Lancaster Farms with all the information needed to file a “notice to owner” as authorized by section 713.06, Florida Statutes. A truck from Dobson’s picked up the trees and transported them to the site of the Space Box project. Upon arriving with the trees, Dobson’s discovered that there was no means by which the trees could be watered at the site. Rather than attempting to jury rig some manner of watering system as requested by Oden Hardy, Dobson’s transported the trees to its place of business, and the trees remain there. The parties have stipulated that Dobson’s has paid all of the invoices except for Invoice No. 5810, totaling $12,580.00. There is no dispute that the trees at issue are “agricultural products” within the meaning of section 604.15(1). There is also no dispute that Dobson’s is a “dealer in agricultural products” within the meaning of section 604.15(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Doug Lancaster Farms, Inc., against Dobson’s Woods and Water, Inc., in the amount of $12,630.00. DONE AND ENTERED this 20th day of November, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 20th day of November, 2020. COPIES FURNISHED: Larry K. Dobson Dobson's Woods and Water, Inc. 851 Maguire Road Ocoee, Florida 34761-2915 Kelly Lancaster Doug Lancaster Farms, Inc. 3364 East County Road 48 Center Hill, Florida 33514 Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077 Kristopher Vanderlaan, Esquire Vanderlaan & Vanderlaan, P.A. 507 Northeast 8th Avenue Ocala, Florida 34470 (eServed) Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 (eServed)
The Issue Whether or not the Respondent failed to remit to Petitioner a payment for nursery products received.
Findings Of Fact Based upon my observation of the witness and his demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings: Petitioner, Gramling Nursery, Inc. (Gramling), is a wholesale nursery (producer) which sells landscape plants and other nursery products from its facility located at 3402 South Redman Parkway, Plant City, Florida. Respondent, Landscape & Water Amenities, Inc. (LWA or Respondent), is a landscaper which maintains its principle office at 2453 South Third Street, Jacksonville Beach, Florida. During times material, LWA was the holder of agricultural bond number 06827 issued through American States Insurance Company in the amount of $10,000.00. Respondent, American States, is a surety company securing payments to producers of agricultural products supplied to LWA. On May 9, 1989, LWA submitted an application for credit to Petitioner. Petitioner approved LWA's credit application and issued a charge account with the following terms: All bills are due when the material is delivered and become past due the 10th of the month following the date of purchase. Delinquent accounts are subject to one and one-half percent per month (18% annually) service charge. Should any collection procedures become necessary, all costs, including reasonable attorney fees, are borne by the customer and venue will be in Hillsborough County. It is a condition of your account [that] you maintain an agricultural bond as required by state law and the bond amount will set your credit limit. On July 13 and July 28, 1989, Petitioner sold to LWA nursery plants on invoice numbers 24796 and 24834 in the respective amounts of $4,038.07 and $140.23, for the total sum of $4,178.30. Petitioner made at least six telephone calls in an effort to collect the payment for the nursery plants which it delivered to LWA and these efforts were all unsuccessful. By letter dated October 19, 1989, Petitioner forwarded, by certified mail, return receipt requested, a demand letter to Frank Timmons, president of LWA, for full payment of $4,397.81 to be received by October 27, 1989. Petitioner advised LWA that in the event that payment was not received, Petitioner would file against LWA's agricultural bond and take other necessary legal action to collect the debt. By letter dated November 21, 1989, Petitioner received a letter from Michael J. Marees, Esquire, which was addressed to all creditors of Landscape and Water Amenities, Inc., advising that his law firm had been retained to assist LWA "in winding up its affairs and conducting a voluntary liquidation of its remaining assets." In attempting to liquidate the remaining assets, to the extent that funds were reportedly available, attorney Marees made an across the board distribution of ten percent of the outstanding debt owed by LWA to all of its creditors. In this regard, Petitioner received a check in the amount of $439.78. By letter dated January 29, 1990, Petitioner advised LWA that the above-referred payment was applied to LWA's account in the form of interest ($401.82) and principal ($37.96) leaving a balance due on that date of $4,141.34. Petitioner received no further communiques from either LWA or American States.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Agriculture and Consumer Services, Bureau of License and Bond, issue a Final Order finding that Respondent, Landscape & Water Amenities, Inc., owes Petitioner the sum of $4,141.34, plus interest accruing at the rate of one and one-half percent per month from January 29, 1990. In the event Respondent LWA fails to pay this sum the Respondent surety shall be required to pay that amount from its agricultural bond pursuant to Section 604.21(8), Florida Statutes. DONE and ENTERED this 30th day of November, 1990, 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 30th day of November, 1990. Copies furnished: Hugh M. Gramling, President Gramling Nursery, Inc. 3402 South Redman Parkway Plant City, Florida 33566 Clinton H. Coulter, Jr., Esquire Senior Attorney Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Frank Timmons Landscape & Water Amenities, Inc. 10445 Atlantic Boulevard Jacksonville, Florida 32225-6723 American State Insurance Company 500 North Third Street Indianapolis, Indiana 46204 Mallory E. Horne, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Doyle E. Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810
Findings Of Fact Culmer Place Tenants Association and Allapattah Tenant Association are not-for-profit corporations chartered by the State of Florida (Exhibits 1 and 2). Allapattah has received IRS tax-exempt status as a publicly supported corporation. Culmer Place has applied for such status but has not as yet received the IRS designation. Both Culmer Place and Allapattah are tenant associations at Housing and Urban Development (HUD) projects in Miami, Florida. These HUD projects are low- income residences sponsored and managed by HUD. The principal source of funds for each Petitioner is HUD. The Associations submit a budget to HUD and receive funds semiannually. Culmer Place received $453 from HUD in 1980 and Allapattah received a slightly less amount. The Associations sponsor activities in their projects principally oriented towards children. These projects, which have been presented by both Petitioners, are the Easter project, family picnic on July 4, Christmas project, community movies, and trips to the circus or other attractions. In addition, one or both Associations have sponsored dances and held rummage sales. Allapattah is currently proposing the establishment of a softball team if funds can be obtained. The Easter project consists of purchasing candy and eggs, getting volunteers to dye the eggs and putting these treats in bags which are given to the children who participate. At Culmer they have an Easter egg hunt but lack of space for hiding the eggs requires the bag approach at Allapattah. The Christmas project is similar to the Easter project in that the Petitioners use the money provided by HUD to purchase candy, fruits and stockings which are taken around and given to the children who live in the project. At the family picnic on July 4, barbeque is provided, as is other food and drinks. It appears that the Associations primarily provide "refreshments" at the projects they sponsor. No picnic was held in 1981 because funds were not available. Other activities sponsored by the Associations include cleanup campaigns at which the young people are assembled to pick up trash and generally "clean up" around the projects. The Associations provide refreshments for the workers and HUD provides the funds to pay these youngsters for their cleanup work. The money for the refreshments is budgeted by the Associations and provided by HUD. The summer lunch program is carried out at these projects with the food for the participants provided by the City, County, or HUD. The volunteers who supervise the serving of the food and activities that accompany this project are members of the Associations and are paid by HUD for the three hours they are so engaged each day. Movies are occasionally shown at the projects. The film is usually rented and the residents are invited by "flyer" to attend. Sometimes cartoons are obtained to show to the children. Occasionally, free tickets to the circus or to some local attraction are obtained by the Associations who arrange the transportation for the children and supervisors to participate in these field trips. These-projects and activities are provided free to the participants and participation is not limited to children, or others, who live in the Petitioner organizations. "Flyers" advertising these projects are prepared and delivered to the residents, placed on the bulletin boards at the housing project office, and some flyers are distributed outside the housing projects by putting them on poles, in stores (that permit) and in washerettes.
