Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: In January, 1990, the Respondent filed an application for credit with the Petitioner. The terms and conditions of the credit application provided: "All written 'Terms and Conditions of Sale' on invoices, statements, contracts or other written agreements must be observed and performed as stated." Further, the application provided: Payment of all amounts due shall be made not later than 30 days from the billing date. Amounts in default will be subject to a SERVICE CHARGE of 1 1/2 % per month (18 % Per Annum) on the unpaid balance. Failure to make payment within terms will result in cancellation of credit. Following acceptance of that application, Respondent sought to purchase sod from Petitioner's LaBelle sod farm. Invoices issued by Petitioner to Respondent at the time of the delivery of the sod provided that the amounts owed would be payable upon receipt of invoice. Further, the printed invoice required the purchaser to make claims within 24 hours of delivery or pick up. The invoices reiterated the 18 percent service charge for past due accounts. From December, 1990, through January 17, 1991, Respondent purchased and accepted in excess of $45,000 worth of sod from the Petitioner. The invoices for those purchases are identified in this record as Petitioner's exhibit 2. From January 30, 1991 until March 4, 1991, Respondent purchased and accepted $4,664.00 worth of sod from the Petitioner. The invoices for those purchases are identified in the record as Petitioner's exhibit 3. In February, 1991, when the Petitioner became concerned about nonpayment for the amounts claimed, contact with the Respondent was made for the purpose of resolving the matter. When those efforts failed to secure payment, the Petitioner instituted action through the Department of Agriculture against the Respondent's bond. The Petitioner claimed $45,080.25 was due for the invoices prior to January 30, 1991. The Petitioner claimed $4,664.00 was owed for the invoices subsequent to January 30, 1991. Subsequent to its claims, Petitioner received payments from the Respondent in the following amounts: $5,000.00 on March 11, 1991; $5,000 on March 26, 1991; and $2,000.00 on April 30, 1991. Applying the total of those payments ($12,000) to the indebtedness on the first claim reduces that amount to $33,080.25. Prior to the claims being filed, Respondent had notified Petitioner that some sod deliveries had been unacceptable because of the quality of the sod or the amount. Respondent claimed the Petitioner had "shorted" the square footage amounts per pallet so that Respondent was being charged for a pallet that did not contain the requisite square footage of sod. On one occasion, in January, 1991, the Petitioner gave Respondent a credit in the amount of $1,173.75 for either refund on poor quality sod or a shortage. The Respondent continued to purchase sod from Petitioner until its credit was no longer accepted by Petitioner, i.e. March 4, 1991. Respondent did not, within 24 hours of receipt of sod, make a claim regarding the quality of the sod or the amount. By letter dated March 14, 1991, the Respondent, through its attorney, advised Petitioner as follows: St. Amour Sod Services, Inc., does not dispute the balance due to you as set forth in your letter and they will pay same in payments that are being determined now. For your information, the balance accrued because of the loss of several of our customers resulting from the poor quality of sod purchased from your firm. Respondent did not timely challenge the quality of the sod accepted, and did not present evidence regarding its alleged poor quality.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Agriculture and Consumer Services enter a final order finding that Respondent is indebted to Petitioner in the amounts of $33,080.25 and $4,664.00, with service charge to be computed through the date of the final order; directing Respondent to make payment of the amounts to Petitioner within 15 days following the issuance of the order; and, notifying all parties that if such payment is not timely made, the Department will seek recovery from Respondent's surety, Aetna Casualty and Surety Company. DONE and ENTERED this 13th day of March, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1992. APPENDIX TO CASE NOS. 91-6388A AND 91-6389A RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER: 1. Paragraphs 1 through 4 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: Paragraph 1 is accepted. Paragraphs 2, 3, 4, 6, 7, and 8 are rejected as contrary to the weight of the credible evidence or unsupported by the record in this case. With regard to paragraph 5, that portion of the paragraph which states the amount of payments made by Respondent ($12,000) is accepted. Otherwise, rejected as stated in 2. above. COPIES FURNISHED: Barry L. Miller P.O. Box 1966 Orlando, FL 32802 Gary A. Ralph 2272 Airport Rd. South, Ste. 101 Naples, FL 33962 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler General Counsel Dept. of Agriculture & Consumer Svcs. The Capitol, PL-10 Tallahassee, FL 32399-0810 Aetna Casualty & Surety Company Attn: Legal Dept. 151 Farmington Ave. Hartford, CT 06156
The Issue The issue is whether Petitioner’s performance under its lawn care service contract with the Department of Management Services was deficient, and, if so, whether the amounts deducted by the Department from the monthly payments made to Petitioner under the contract were reasonable and appropriate.
Findings Of Fact Petitioner provides lawn care services to residential and commercial properties in the central Florida area. Andre Smith is Petitioner’s owner and president. In November 2004, the Department entered into a contract with Petitioner for lawn care services at nine Department buildings. The contract was awarded to Petitioner through a competitive procurement process in which Petitioner was the low bidder. The contract number was ITN No. 26-991- 490-Z. Petitioner was to be paid a total of $7,384.92 per month under the contract. Each of the nine buildings was apportioned a specific amount of the total price in the contract. The scope of work under the contract generally included lawn care services, open field mowing, and irrigation system maintenance. The lawn care services required under the contract included mowing, edging, weed control, fertilizing, watering, shrub and tree pruning, mulching, and clean-up. The contract specified the frequency that the services were to be performed. Mowing was to be done weekly between April and November, and every two weeks between December and March; hedges and shrubs were to be trimmed at least monthly unless more frequent trimming was required for aesthetic reasons; and mulching was to be done in March and September. The contract required Petitioner to take soil samples at the beginning of the contract and annually thereafter. The results of the soil samples were to be used to determine whether Petitioner needed to apply iron, lime, or other minerals to the lawns. The contract required Petitioner to inspect each building’s irrigation system at the beginning of the contract, and required Petitioner to provide a report to the building manager regarding any repair work needed on the system. Petitioner was also required to check the irrigation system on every visit to ensure that it was operating properly. The contract required Petitioner to apply pre-emergent weed control and fertilizer. The weed control was to be applied in the spring and the fall, and the fertilizer was to be applied three times during the year on an agreed upon schedule. The mulching required by the contract was to be done in March and September. The mulch was to be maintained at a depth of four inches throughout the year. The contract required Petitioner to use cypress mulch. The day-to-day operation of the buildings subject to the contract was the responsibility of on-site building managers, not the Department staff in Tallahassee. The building managers were responsible for the direct oversight of Petitioner’s work under the contract, and they were also responsible for reviewing and evaluating Petitioner’s performance. Petitioner began providing services under the contract in December 2004. Petitioner received full payment from the Department for the services that it provided from December 2004 through March 2005, even though several of the building managers were not satisfied with Petitioner’s performance under the contract during that period. Several of the building managers spoke with Mr. Smith regarding their concerns with Petitioner’s performance under the contract. They also documented Petitioner’s performance deficiencies on the monthly summary report forms that the contract required Petitioner to submit in order to obtain payment. Starting in April 2005, the building managers were required to fill out evaluation forms in addition to the monthly summary report forms. The impetus for the creation and use of the evaluation forms was Petitioner’s continuing unsatisfactory performance under the contract. The building managers used the evaluation forms to rate Petitioner’s performance as “good,” “fair,” or “poor” on the 20 categories of service that Petitioner was required to perform under the contract. Each service was assigned an equal weight -- e.g., one twentieth or five percent of the contract -- and if all 20 services were not applicable to a particular building, the weight assigned to each service was adjusted accordingly. The evaluation form was developed by Kris Parks, who was the contract administrator for Petitioner’s contract. Ms. Parks developed the form on her own. She did not get the input of the building managers in developing the form, and Mr. Smith was not consulted regarding the development of the form. The evaluation forms were used by Ms. Parks in conjunction with the monthly summary report forms in order to reduce the payments made to Petitioner under the contract. Each service for which Petitioner was given a “poor” rating by a building manager resulted in a five percent deduction in the amount paid to Petitioner. Typically, a “poor” rating reflected work that was not performed at all by Petitioner, rather than work that was performed unsatisfactorily. In some situations, a smaller deduction was made if the comments on the evaluation form or the monthly summary report form reflected partial performance despite the “poor” rating. For example, if Petitioner received a “poor” rating for mowing, but the comments reflected that Petitioner provided services twice during the month rather than the required four times, the deduction was 2.5 percent rather than five percent. The reduction of payments under the contract for unsatisfactory performance or unperformed work is specifically authorized by Section 3.13 of the contract. Section 3.13 of the contract states that the monthly summary report form “will be used by [the building managers] to track performance of services, in order to determine a proportional deduction in payment for services that are not performed as agreed” in the contract. It does not mention any other form. The contract does not define “proportional deduction” and it does not include the methodology to be used in calculating the deduction. The contract is silent on those issues. Petitioner’s contract with the Department was amended in May 2005 to reduce the number of buildings that Petitioner served from nine to three. The three remaining buildings were the ones closest to Petitioner’s business location in Lakeland, i.e., the Hargrett and Trammel Buildings in Tampa and the Peterson Building in Lakeland. The reduction in the scope of the contract was the result of Petitioner’s continuing unsatisfactory performance under the contract, and it reflected the Department’s well- founded view that Petitioner was not able to handle all nine buildings. The Department staff was trying to help Mr. Smith by allowing Petitioner to retain a portion of the contract rather than canceling the contract altogether based upon Petitioner’s poor performance. The invoices submitted by Petitioner for April 2005 through July 2005 were as follows: $7,384.92 (April); $7,384.92 (May); $1,938.64 (June); and $1,938.64 (July). The April and May invoices were based upon the nine buildings served by Petitioner in those months. The June and July invoices were based upon the three buildings served by Petitioner in those months. The Department did not pay the invoices for April 2005 through July 2005 in full. It paid Petitioner $2,451.782 for April (33.2 percent of the invoice), $835.82 for May (11.6 percent), $453.393 for June (23.4 percent), and $904.66 for July (46.7 percent). The amounts deducted -- $4,933.14 for April; $6,531.10 for May; $1,485.25 for June; and $1,033.98 for July -- were based upon the Department’s determination that Petitioner failed to perform certain work under the contract. The amounts deducted were calculated by Ms. Parks using the information provided to her by the building managers on the evaluation forms, as described above. The letters by which the Department informed Petitioner of the payment reductions advised Petitioner that it “may have the right to an administrative hearing regarding this matter, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.” The letters explained what Petitioner was required to do to request a hearing and advised Petitioner that the "[f]ailure to timely request a hearing will be deemed a waiver of [the] right to a hearing." Petitioner timely filed letters challenging the deductions for April, June, and July 2005. The total deductions for those months were $7,452.37. Petitioner did not file anything challenging the deduction for May 2005. Therefore, the $6,531.10 deduction for that month is not at issue in this proceeding. Petitioner is not entitled to the full amount billed to the Department for April, June, and July 2005 because all of the services required under the contract were not performed during those months. Mr. Smith conceded this point in his testimony at the final hearing.4 Mr. Smith contended at the hearing that the amounts deducted by the Department were not reasonable in light of the services that Petitioner did provide. However, Mr. Smith did not identify what he would consider to be a reasonable deduction for the work that Petitioner admittedly did not perform. Petitioner routinely failed to provide mowing services at each of the buildings at the intervals required under the contract. For example, Petitioner only mowed one time during the month of June 2005 at the Hargrett and Trammel Buildings, rather than the four times required under the contract. Petitioner did not put down mulch at any of the buildings in March 2005, as required by the contract. When the building managers asked Mr. Smith about the mulch, he told them that he would get to it. Mr. Smith testified that he was told by the Department staff in Tallahassee that the mulch could be put down in any month so long as it was done twice a year. That uncorroborated, self-serving testimony was not persuasive. Petitioner put down mulch at some, but not all of the buildings in April and May 2005. The mulch that Petitioner put down did not cover all of the areas requiring mulch and it was not put down at the required four-inch depth. At the Trammel Building, for example, the mulch put down by Petitioner was less than half of that required by the contract. No mulch was ever put down at the Hurston Building in Orlando or the Grizzle Building in Largo. Petitioner’s performance was often deficient in regards to trimming and clean-up of debris. For example, on one occasion at the Trammel Building, Petitioner left more than 60 bags of leaves in and around the building’s dumpster; at the Hargrett building, there were overhanging tree limbs that went untrimmed for an extended period; and Petitioner routinely failed to do trimming at the Grizzle Building, although he did a good job picking up debris at that building. The services provided by Petitioner at the Trammel Building got so bad that the building manager had to hire another company at a cost of approximately $1,800 to clean up the site so that it would be presentable for an event in the vicinity of the building that was attended by a U.S. Senator and other dignitaries. The building managers were never given the results of the soil samples that Petitioner was required to take at the beginning of the contract even though they repeatedly requested that information. When Mr. Smith was asked about the soil samples by the building managers, he told them that he would get them done. Mr. Smith claimed at the hearing that he sent the results of the soil samples to the Department staff in Tallahassee, although he could not recall whom specifically he sent the results to, and he offered no documentation to corroborate his testimony on this issue. Petitioner’s testimony regarding the soil samples was not persuasive. The Department’s witnesses credibly testified that they never received the results of the soil samples from Petitioner. Indeed, the evidence was not persuasive that Petitioner ever took the soil samples required by the contract. The print-outs presented at the final hearing, Exhibit DMS-11, do not have any identifying information that would corroborate Mr. Smith’s testimony that the samples described in the print- outs were from the buildings that were the subject of the contract.5 Moreover, the print-outs are dated March 8, 2005, which is more than four months after the samples were supposed to have been taken by Petitioner, and several of the soil samples had pH levels outside of the range set forth in the contract. Mr. Smith testified that Petitioner applied fertilizer and pre-emergent weed control at each of the buildings, as required by the contract. That uncorroborated, self-serving testimony was not persuasive. The more persuasive evidence establishes that Petitioner did not apply fertilizer or pre-emergent weed control. On this issue, the building managers credibly testified that they were never advised by Mr. Smith that the fertilizer or pre-emergent weed control was being applied, even though those services were to supposed be performed pursuant to a schedule agreed upon with the building managers; the building managers credibly testified that they did not observe any signs that fertilizer had been applied, such as the greening of the grass; and fertilizer could not have been applied at the Hurston Building without killing all of the grass because the fertilizer needs to be watered into the lawn, and the sprinkler system at the building was not working at the time. Petitioner failed to perform the required inspection of the irrigation system at several of the buildings, including the Hurston Building, at the beginning of the contract in order to determine whether any repairs needed to be done. The system at the Hurston Building did not work for an extended period of time, which caused large sections of grass around the building to die from a lack of water. The performance deficiencies described above were cited on the monthly summary report forms and the evaluation forms completed by the building managers, which in turn were used by Ms. Parks to calculate the amount deducted from the monthly payments made to Petitioner under the contract. Petitioner was responsible for the costs of the mulch, fertilizer, and pre-emergent weed control required under the contract. The money that Petitioner “saved” by not providing those services likely exceeds the amounts deducted by the Department pursuant to Section 3.13 of the contract. For example, the mulch purchased by Petitioner for the Trammell Building cost approximately $2,250, and that was only half of the mulch needed for that building alone. Petitioner is no longer providing lawn care services to the Department under the contract. The contract was revoked based upon Petitioner’s unsatisfactory performance. The revocation of the contract, which occurred at some point prior to August 2005, is not at issue in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services issue a final order rejecting Petitioner’s challenge to the payment reductions made by the Department for the months of April, June, and July 2005. DONE AND ENTERED this 3rd day of November, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd of November, 2006.
The Issue Whether, under the provisions of sections 604.15 - 604.34, Florida Statutes, Lester Towell Distributors, Inc., is entitled to recover $2,098 for agricultural products ordered by and delivered to VBJ Packing, Inc
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made. Lester Towell is a dealer in Florida-grown agricultural products. VBJ is a dealer in Florida-grown agricultural products. On May 22, 1995, VBJ placed an order with Lester Towell to purchase a quantity of extra-large green bell peppers. Lester Towell delivered 200 boxes of such peppers to VBJ on May 23, 1995. To fill this order, Lester Towell purchased 63 boxes of peppers from producer Ott Farms, Inc., in Estero, Florida, and 137 boxes from producer Thomas Produce, in Boca Raton, Florida. Lester Towell did not act as agent for these producers; it purchased the products outright. On May 22, 1995, VBJ placed an order with Lester Towell to purchase a quantity of yellow corn. Lester Towell delivered 100 boxes of such corn to VBJ on May 24, 1995. To fill this order, Lester Towell purchased 100 boxes of corn from producer Wilkinson-Cooper, in Belle Glade, Florida. Lester Towell did not act as agent for this producer; it purchased the products outright. On May 24, 1995, VBJ placed an order with Lester Towell to purchase a quantity of jalapeno peppers, white corn, and red radishes. Lester Towell delivered two boxes of jalapeno peppers, 26 boxes of white corn, and 20 boxes of red radishes to VBJ on May 25, 1995. To fill this order, Lester Towell purchased 2 boxes of jalapeno peppers from producer Ott Farms, Inc., in Estero, Florida, and 26 boxes of white corn and 20 boxes of red radishes from producer American Growers in Belle Glade, Florida. Lester Towell did not act as agent for these producers; it purchased the products outright. Lester Towell filed its complaint with the Department of Agriculture and Consumer Services ("Department") pursuant to the provisions of section 604.21(1), Florida Statutes, because VBJ did not pay for the products identified above. There is, however, no evidence to establish that Lester Towell was a producer or the agent or representative of a producer with respect to the products for which it seeks payment. It is, therefore, not a "person" entitled to file a complaint with the Department against VBJ and its surety.
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 dismissing the complaint of Lester Towell Distributors, Inc. DONE AND ENTERED this 3nd day of July 1996 in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 3rd day of July 1996
Findings Of Fact K & B Enterprises, Respondent, purchased plants from Roy Amerson, Inc., Petitioner, and they were delivered to Respondent on February 19, 1980. Respondent had ordered Bottlebrush and Cuban laurel (Ficus Nitida) packaged in wire baskets to protect root ball in shipment. Upon arrival Respondent noted that the wires were mangled and some root balls appeared separated from the roots. Before the trees were unloaded Mrs. Benway telephoned the salesman for Petitioner and told him about the condition of the trees. The salesman advised her to accept the trees, water them, and they (Amerson) would make an allowance for the damage. This, he said, would be better and cause less damage to the trees than if they were sent back on the truck that brought them. The driver was requested by Mr. Benway to note the condition of the trees on the invoice accompanying the shipment (Exhibit 1). No such notation was made. The driver did note the date of delivery. Respondent Benway acknowledged receipt of the merchandise by signing Exhibit 1 below the following statement printed near the bottom of Exhibit 1: STOCK MAY BE REFUSED AT TIME OF DELIVERY FOR A DEFINITE REASON, BUT ONCE SIGNED FOR CUSTOMER ASSUMES RESPONSIBILITY FOR TOTAL AMOUNT OF INVOICE. OPEN ACCOUNTS PAYABLE BY THE 10TH OF THE MONTH. 1 1/2 PERCENT CHARGE ADDED IF NOT PAID BY THE 25TH WHICH IS ANNUAL RATE OF 18 PERCENT. Respondent is a plant retailer and landscape contractor. After accepting the February 19, 1980 delivery the Cuban laurel was planted as were the other plants. Attempts to settle the dispute with Petitioner's salesman were unsuccessful. Nine of the Bottlebrush died but all of the Cuban laurel have survived. At the instruction of the salesman these plants were watered but not trimmed or fertilized. Respondent paid for the other plants received on this invoice and for the damaged plants as they have been sold. As of the date of the hearing the balance owed on the stock delivered on Exhibit 1 was $1,494.90.
The Issue The issues in this case are whether Raysbrook Sod, Inc. (Respondent), is indebted to Florida Sod, Inc. (Petitioner), related to the sale and purchase of sod, and, if so, in what amount.
Findings Of Fact Petitioner is a corporation engaged in the business of harvesting sod. Petitioner is located in LaBelle, Florida. Respondent is a corporation located in Riverview, Florida, and is also engaged in the sod business. In September 2007, Respondent was interested in purchasing some sod in order to satisfy a customer's needs. Respondent's regional supervisor, Gabriel Monsivais, approached a gentleman by the name of Trampis Dowdle about purchasing sod. Monsivais had never met Dowdle and, in fact, knew him only as "Mr. Trampis." Dowdle represented that he could obtain sod from Petitioner, and a deal was struck. There was no written contract between Monsivais and Dowdle, nor--quite interestingly- -between Petitioner and Respondent. Nonetheless, Respondent had its drivers go to Petitioner's sod field and begin loading sod for Respondent's use. In all, approximately 1,700 pallets of sod were acquired from Petitioner's field by Respondent. Each time a load of pallets was taken, a Load Sheet was created to show the number of pallets, the location of the field, and the name of the person taking the sod. The driver of the truck was expected to sign the Load Sheet, indicating that the sod had indeed been received. There is no dispute between the parties about the number of pallets taken by Respondent's drivers.1 As sod was taken by Respondent, Petitioner would issue an invoice reflecting the amount of sod and the price to be paid. The invoices were sent to Respondent via U.S. Mail. The total amount billed for the sod was $42,559.16. Respondent issued a check (No. 8899) in the amount of $1,271.16, made payable to Petitioner on November 30, 2007, in payment of the first invoice from Petitioner. No further checks from Respondent were received by Petitioner, leaving a balance due of $41,288.00.2 Respondent, however, did attempt to make payments for the sod it purchased. Respondent wrote checks to Dowdle based on Dowdle's representations that he either owned Petitioner's company or was working for Petitioner. In fact, Dowdle neither owned nor was in any way affiliated with Petitioner. Dowdle was apparently defrauding Respondent (and possibly Petitioner as well). Respondent's representative, Joseph Bushong, and Petitioner's representative, Jake Alderman, had never met prior to the day of the final hearing in this matter. There was no written contract between the parties. The entire business relationship between the parties was done orally, based on conversations between Monsivais and Dowdle. Nonetheless, Respondent did obtain over $42,000.00 worth of sod from Petitioner. Respondent does not contest this fact. Respondent's actions indicate acknowledgement of the presumed relationship between the parties. Respondent submitted a credit application to Petitioner with references and credit information to be used by Petitioner in extending credit to Respondent for the sod it was purchasing. Respondent issued at least one check directly to Petitioner for payment of the sod in response to an invoice issued by Petitioner. The check was made payable to "Florida Sod" in the amount of $1,271.16. That check directly corresponds to the amount in Invoice No. 1697 from Petitioner dated October 8, 2007. Respondent did receive additional invoices from Petitioner for the sod Respondent had purchased and received. Clearly, there was an understanding between the two companies that a business relationship existed. After making its first payment to Petitioner, Respondent's subsequent payments for the sod were made directly to Dowdle and his companies. One such payment, made by way of a credit card, was actually applied to a restaurant with which Dowdle apparently had some business connection. Other payments were made via checks made payable to other Dowdle interests. Respondent made payments to Dowdle in the mistaken belief that Dowdle was the agent of or employed by Petitioner. In fact, Dowdle has never been affiliated with Petitioner. Petitioner did not receive any of the payments made by Respondent to Dowdle. Petitioner and Dowdle are not related or affiliated in any fashion (other than a prior arm's-length sod purchase between the two). It is clear that Dowdle received the payments intended for Petitioner in payment for the sod purchased by Respondent. Dowdle, whose whereabouts are unknown by the parties, did not provide Petitioner with the payments. Rather, from the evidence, it appears that Dowdle kept the payments, thereby committing a fraud on both Petitioner and Respondent. Though both parties are somewhat at fault in this matter for failure to utilize normal and acceptable business practices, one or the other party must necessarily bear the burden of payment. The evidence supports Petitioner in this regard because it best followed normal business procedures. Had Respondent made its remittance checks payable to Petitioner (who had issued the invoices), Dowdle would not have been able to abscond with the money. Had Respondent obtained some affirmative proof that Dowdle was an agent of Petitioner, Respondent would have known better than to provide money to Dowdle. Had Respondent contacted Petitioner directly instead of relying on third parties (its foreman and Dowdle), the deception would have been uncovered. However, the facts of this case support the proposition that Petitioner made a valid sale of sod to Respondent, and Respondent did not pay Petitioner for the sod.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services requiring Respondent to pay Petitioner the sum of $41,288.00 within 30 days of entry of a final order. DONE AND ENTERED this 31st day of October, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 31st day of October, 2008.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, Petitioner was a "producer" of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1985). At all times pertinent to this proceeding, Flynn was a licensed "dealer in agricultural products" as defined by Section 604.15(1), Florida Statutes (1985), issued license No. 04147 by the Department, and bonded by Respondent, Lawyers Surety Corporation (Surety) in the sum of $4,500.00 - Bond No. 337892. At all times pertinent to this proceeding, Surety was authorized to do business in the State of Florida. Petitioner's complaint was timely filed in accordance with Section 604.21(1), Florida Statutes, (1985). On November 28, 1986, Petitioner and Flynn entered into a contract whereby Petitioner would furnish, install and roll 100,000 square feet of Floratum sod for a total contract price of $14,500.00. The sod was to be installed at the Brooksville Post Office (Brooksville) job site. Edwards Construction and Development, Inc. (Edwards), the prime contractor on the job, subcontracted with Flynn for the landscaping on the Brooksville job. Flynn in turn subcontracted with Petitioner for the sodding portion of the landscaping. Flynn was delinquent in completing the landscaping contract, due in part to the sodding not meeting contract specification in a timely fashion, and was assessed a penalty of $1,800.00 by Edwards for this delinquency. Although there were problems with the sodding meeting contract specification in a timely fashion, there was insufficient evidence to show that the problems were due to Petitioner's failure to timely and properly install the sod in accordance with the contract between Petitioner and Flynn. Although Flynn was required to expend additional funds to bring the sod into compliance with Edwards' contract for acceptance, there was insufficient evidence to show that this expenditure was due to Petitioner's failure to timely and properly install the sod in accordance with the contract between Petitioner and Flynn. Flynn was required to spend $77.00 to replace flowers damaged by Petitioner's employees while installing them on the Brooksville job. Petitioner billed Flynn $3,476.00 or $0.11 per square foot for installing 31,600 square feet of bahia grass sod on the Carriage Hill job. The measured square feet of bahia grass sod actually installed was 24,570 square feet. Petitioner overbilled Flynn for 7,030 square feet of installed sod for a total dollar amount of $773.30. Petitioner billed Flynn $130.00 for pallets used to deliver grass sod to Flynn which allegedly were not returned to Petitioner. Pallets are not "agricultural products" as that term is defined in Section 604.15(3), Florida Statutes (1985). Likewise, Petitioner does not "produce" pallets.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that Flynn be ordered to pay Petitioner the sum of $2,037.70. It is further Recommended that if Flynn fails to timely pay the Petitioner as ordered, the Respondent Lawyers Surety Corporation be ordered to pay the Department as required by Section 604.21, Florida Statutes (1985) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1985). Respectfully submitted and entered this 28th day of October, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 28th day of October, 1987. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, Gen. Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Clinton H. Coulter, Jr., Esquire Dept. of Agriculture and Consumer Services Mayo Building Tallahassee, Florida Ben H. Pridgeon, Jr., Chief Bureau of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Thomas G. Flynn Flynn's Nursery and Landscape, Inc. 1345 S.E. 33rd Court Ocala, Florida 32671 Lawyers Surety Corporation Post Office Box 47480 Dallas, Texas 75247 Leo F. Steinmetz G. O. Parker Sod, Inc. Post Office Box 217 Lady Lake, Florida 32659
The Issue The issue is whether the claims of $98,935.20 and $19,147.70, filed by Petitioner under the Agricultural Bond and License Law, are valid. §§ 604.15 - 604.34, Fla. Stat. (2008).
Findings Of Fact At all material times, Petitioner has been a producer of agricultural products located in Plant City, Florida. At all material times, American Growers has been a dealer in agricultural products. Respondent Lincoln General Insurance Company, as surety, issued a bond to American Growers, as principal. American Growers is licensed by the Department of Agriculture and Consumer Services ("DACS"). Between December 16, 2008, and February 4, 2009, Petitioner sold strawberries to American Growers, each sale being accompanied by a Passing and Bill of Lading. Petitioner sent an Invoice for each shipment, and payment was due in full following receipt of the Invoice. Partial payments have been made on some of the invoices, and as of the date of this Recommended Order, the amount that remains unpaid by American Growers to Petitioner is $117,982.90, comprising: Invoice No. Invoice Date Amount Balance Due 103894 12/16/08 $7,419.00 $1,296.00 103952 12/22/08 $18,370.80 $1,944.00 103953 12/23/08 $3,123.60 $648.00 193955 12/26/08 $8,164.80 $1,728.00 103984 12/28/08 $28,764.40 $28,764.40 104076 12/31/08 $17,236.80 $17,236.80 104077 1/5/09 $17,658.00 $17,658.00 104189 1/5/09 $1,320.90 $1,320.90 104386 1/20/09 $16,480.80 $16,480.80 104517 1/29/09 $17,449.20 $17,449.20 104496 2/4/09 $13,456.80 $13,456.80 TOTAL $117,982.90
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring Respondent, American Growers, Inc., and/or its surety, Respondent, Lincoln General Insurance Company, to pay Petitioner, Crown Harvest Produce Sales, LLC, the total amount of $117,982.90. DONE AND ENTERED this 18th day of May, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2010. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture and Consumer Services The Capital, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, Mail Station 38 Tallahassee, Florida 32399-0800 Glenn Thomason, President American Growers, Inc. 14888 Horseshoe Trace Wellington, Florida 33414 Katy Koestner Esquivel, Esquire Meuers Law Firm, P.L. 5395 Park Central Court Naples, Florida 34109 Renee Herder Surety Bond Claims Lincoln General Insurance Company 4902 Eisenhower Boulevard, Suite 155 Tampa, Florida 33634 Glenn C. Thomason, Registered Agent American Growers, Inc. Post Office Box 1207 Loxahatchee, Florida 33470
The Issue Whether the Respondent owes payment to the Petitioners for citrus sold by the Petitioners to the Respondent and, if so, what amount of payment is due.
Findings Of Fact Rogers Brothers Fruit Company was a licensed Florida citrus dealer in Lakeland, Florida, license #110, and as such posted a dealers bond for the 1992- 93 production season. Rogers Brothers Fruit Company, Incorporated was also a licensed Florida citrus dealer in Lakeland, Florida, license #111, and as such posted a dealers bond for the 1992-93 production season. In these cases, both Rogers Brothers Fruit Company and Rogers Brothers Fruit Company, Incorporated dealt interchangeably with, and are equally liable to, the Petitioners. CASE NO. 94-5393 R. T. Poppell and Carl Carpenter, Jr. are citrus growers in Florida. By contract entered into in October, 1992, Poppell and Carpenter sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation based on Erly Juice contract." CASE NO. 94-5394 R. T. Poppell is a citrus grower in Florida. By contract entered into in October, 1992, Poppell sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Holly Hill contract." CASE NO. 94-5395 Jack P. Sizemore is a citrus grower in Florida. By contract entered into in October, 1992, Sizemore sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Holly Hill contract." CASE NO. 94-5396 Mac A. Greco, Jr., and R. T. Poppell are citrus growers in Florida. By contract entered into in October, 1992, Greco and Poppell sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Erly Juice contract." CASE NO. 94-5397 Maple Hill Groves, Inc., is in the business of growing oranges in Florida. By contract entered into in November 1992, Maple Hill sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Erly Juice contract." Erly Juice was a Florida company in the business of acquiring and processing citrus for juice. Although two of the contracts at issue in this proceeding indicate payment is based on participation in the Holly Hill contract, all parties apparently agree that the Erly Juice contract was the relevant payment reference. In this case, Rogers Brothers had entered into agreements with Erly Juice for a specified quantity of oranges. Rogers, in turn, contracted with growers to obtain the fruit Rogers needed to meet the obligation to Erly. Payment to the growers was to be based on "participation." Essentially, "participation" payment means that individual citrus growers get a proportionate share of the proceeds obtained by the buyer. During the 1993 citrus production season, Erly began experiencing financial difficulties. By letter of August 25, 1993, Erly notified citrus suppliers that the Erly plant in Lakeland had been sold and that the company had been reorganized. The letter further states as follows: We have now completed the calculation of the amount due for participants in our early/mid season orange pool. Our interim estimation of the final participation price is $.57 per lb. solid. We are, however, unable to pay the 25 percent advance amount due at this time. Negotiations continue with our bank to resolve this problem. By letter of September 29, 1993, Erly notified Rogers Brothers that Erly was unable to pay its obligations. The letter states: As we discussed on the phone this morning, ERLY Juice is unable to pay 100 percent of the amount due under our fruit contracts. We have, however, negotiated additional credit to allow us to offer 75 percent of the amount due in order to settle without litigation expense.... ...If you agree to settle our obligations to you for $22,630.54, please sign the attached Settlement Agreement and Release.... Rogers Brothers accepted the settlement offer. The settlement amount was calculated at 75 percent of the originally estimated $.57 lb. solid payment. The resulting payment is $.4275 lb. solid. Rogers Brothers, in turn, paid each Petitioner an amount equal to $.4275 lb. solid for the fruit obtained from each grower. The Petitioners assert that they are entitled to additional funds from Rogers Brothers in the amount of the 25 percent of the original $.57 estimate. The evidence fails to support the assertion.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that: The Florida Department of Agriculture and Consumer Services enter a Final Order dismissing the Petitions for Relief filed in these cases. DONE and RECOMMENDED this 16th day of August, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 16th day of August, 1995. APPENDIX TO RECOMMENDED ORDER The following constitute rulings on proposed findings of facts submitted by the parties. Petitioners The Petitioners' proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: I. Rejected, contrary to the evidence. Two of the contracts specify payment is based on the Holly Hill contract. Rejected, cumulative. Rejected, contrary to the evidence which establishes that the $.57 lb. solid payment was estimated. P, Q, R. Rejected, irrelevant. The Petitioners had no contract with Erly. S, T, U, V, W, X. Rejected, unnecessary. The evidence fails to establish that further payment from Rogers Brothers to the Petitioners is due under the terms of the contracts. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. COPIES FURNISHED: The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Michael S. Edenfield, Esquire 206 Mason Street Brandon, Florida 33511 Michael D. Martin, Esquire 200 Lake Morton Drive, Suite 300 Lakeland, Florida 33801
The Issue The issues in this matter are those raised through a notice to show cause/administrative complaint brought by the Petitioner against the Respondent alleging various violations of Chapter 498, Florida Statutes. In particular, Respondent is alleged to be a subdivider who has offered or disposed of an interest in subdivided lands or been a participant in that arrangement as described in Section 498.023(1), Florida Statutes, without registering to do so or being exempt from the requirement of registration. Further, Respondent is said to have made false and misleading statements to purchasers concerning the conduct of the sale of subdivided land as described in Section 498.051(1)(b), Florida Statutes. In addition, the Respondent is accused of offering or distributing or participation in that offering or distribution of the subdivided land without providing a public offering statement to the purchasers of the land prior to the disposition as spoken to in Section 498.023(2), Florida Statutes. Respondent does not take issue with the latter allegation, assuming the need to register to sell subdivided land or the unavailability of an exemption from the terms of Chapter 498, Florida Statutes.
Findings Of Fact Through a pre-hearing stipulation, the parties have agreed to certain evidential facts. Those facts and the matters set forth in the transcript of the proceedings, to include the testimony and tangible evidence, form the basis for fact finding in this recommended order. On June 20, 1963, D. D. Jeffords acquired 430 acres of property in Putnam County, Florida, near the town of Interlachen. This acreage is contiguous. Subsequent to the purchase, he began to develop the property as a subdivider and named the subdivision Ocklawaha Hills. Notwithstanding the fact that the property known as Ocklawaha Hills was being subdivided into fifty or more lots, parcels or interests, D. D. Jeffords did not register this. subdivision known as Ocklawaha Hills with the Petitioner, nor seek exemption from the requirement to register. D. D. Jeffords had as his ultimate goal the sale or disposition of the lots, parcels or interests in Ocklawaha Hills which were being subdivided. Although the Ocklawaha Hills land was surveyed into lots and units, the plats that involved this surveying were not recorded. After purchase and before 1970, D. D. Jeffords had commenced the sale of the lots in Ocklawaha Hills through offices in Interlachen and Palatka. On April 4, 1970, D. D. Jeffords married Christell Jeffords, the Respondent in this cause. Mrs. Jeffords, who is now known as Christell B. Sheffield, did not have any active participation in the sale of lots within Ocklawaha Hills in the early part of her marriage to D. D. Jeffords. Her participation in these matters pertained to the need to sign as the wife of D. Jeffords in the event of conveyance of the lots to purchasers. In 1974 D. D. Jeffords suffered a stroke which incapacitated him and he was never fully recovered from that point until his death. For this reason his wife, Christell Jeffords, began to take a more active role in the real estate business of her husband and involvement with the sale of property at Ocklawaha Hills. This included examination and signing of sales documents and making managerial decisions. To further this pursuit, D. D. Jeffords signed a power of attorney authorizing the Respondent to conduct his business, to include the disposition of the property known as Ocklawaha Hills. The power of attorney dates from August 12, 1974. On May 25, 1977, D. D. Jeffords conveyed his remaining interest in Ocklawaha Hills to himself and to his wife. Christell, as husband and wife. In May 1978, Petitioner undertook an investigation of the activities of the Jeffords related to the sale of property in Ocklawaha Hills. This was an effort to determine if jurisdiction existed to require the registration or the request for exemption of the activities of the Jeffords related to the disposition of the Ocklawaha Hills property. To further this investigation the Jeffords submitted answers to a questionnaire, a copy of that questionnaire being found as Petitioner's Exhibit 4 admitted into evidence. In the course of giving those answers, it was identified that Ocklawaha Hills was constituted of 430 acres and that 143 parcels or lots had been offered for sale with 111 lots having been sold as of May 12, 1978. At that time it was stated that the balance of the property had not been developed. This answer to the questionnaire described the fact that the sales were being made through the provision of warranty deeds on cash sales and through the use of agreements for deeds in the sales in which the purchaser had to make further payments before being provided a warranty deed. Petitioner's Exhibit 4 also identifies the fact that the sizes of the 143 lots that were subdivided at that point were in the range of three- quarters of an acre to ten acres. On October 24, 1978, the Jeffords applied to the Petitioner to have the sales or disposition of the property in Ocklawaha Hills exempt from the requirement to register as subdividers. In the course of this request for exemption, an exemption statement was prepared, a copy of which may be found as Petitioner's Exhibit 2 admitted into evidence. Although this references the total number of lots within the subdivision as being 123, in view of the statement in the questionnaire discussed in paragraph 10 and the depiction of the various lots in that questionnaire document, the number of lots in the subdivision that were developed at the point of the request for exemption is found to be 143 lots or parcels. The exemption statement shows that 114 lots had been sold or were under contract at that time. Further, it establishes that some additional eighty-seven acres of land were available for future expansion in Ocklawaha Hills. At the time that the exemption statement was made, five units were involved in the subdivision, with an additional three units contemplated as being available to be subdivided. No order of exemption from the requirements of registration has ever been given to the Jeffords or any other person who holds an interest in Ocklawaha Hills. The outcome of the investigation of the activities of the Jeffords at Ocklawaha Hills led to the signing of an agreement, what is now known as a consent order, between the Jeffords and the Petitioner. A copy of that agreement is found as Petitioner's Exhibit 5 admitted into evidence. The date of the agreement is March 6, 1979. By its terms the Jeffords agreed to maintain the roads in the Ocklawaha Hills subdivision and to deposit money into an escrow account equal to the cost of one year's maintenance expense for the roads in the subdivision. This agreement allowed the sale of only those lots which had been developed and unsold in inventory at Ocklawaha Hills subdivision. Those lots were specifically identified as Lots 505, 506, 514A, 515, 519, 520A, 521, 521A, 534, and 526A. As to those lots, and the past activities involving the subdivision, the Petitioner indicated it would take no legal action against the Jeffords for the sale of those lots. The specifically identified lots are found within Unit 5 of the Ocklawaha Hills subdivision. The Jeffords were not to sell any further lots without registering with the Petitioner or obtaining an exemption under the terms of Chapter 478, Florida Statutes, which was the precursor to the, present Chapter 498, Florida Statutes. This agreement by its terms would not allow for the sale of lots or parcels within. Units 6, 7, and 8 of Ocklawaha Hills. In effect, the agreement which forgave any violation or failure to comply with the registration provision of Chapter 478, Florida Statutes, did not preclude the prosecution of any violation related to the future sale or disposition of property in Units 6, 7, and 8. D. D. Jeffords died on December 18, 1979. Upon his death the Respondent became the owner of all parcels within Ocklawaha Hills that had not been conveyed prior to her husband's death. Respondent remarried on November 7, 1981, and became Mrs. Sheffield. In accordance with the stipulation of facts by the parties, the following is a depiction of some of the lots in which the Respondent participated in the offer and disposition of or individually offered and disposed within Ocklawaha Hills subdivision. In the instances of agreement for deed, not all of those were Purchaser recorded. Lot No. Recorded Instrument Date Recorded OR Book & Page Unit 1 Caines 3 20 Warranty Deed Article of 4/8/83 12/12/77 432-982 354-615 Wilkinson Agreement Warranty 4/3/80 388-967 c) Juliette 32 Deed Article of 10/74 313-1631 Bostick Agreement Warranty 9/81 405-1552 d) Marvin 34 Deed Warranty 7/2/80 391-1780 McClanahan Deed Jerry James Unit 2 a) David Bishop 57 Article of Agreement 12/27/77 354-1832 b) Kenneth 58 Warranty Deed Article of 11/8/79 4/5/78 382-1596 358-1489 Shrader Agreement Warranty 9/14/81 409-1841 c) David 60 Deed Article of 7/11/78 362-1677 Bishop Agreement 1/10/80 385-586 d) Richard 61 Warranty Deed Warranty 6/6/85 4/12/05 468-372 465-1089 Barber Deed Unit 3 a) Jarge 303 Article of 11/6/80 396-1516 Travassas b) Earl 317 Agreement Warranty Deed Warranty 8/85 12/81 471-1400 413-177 Mace c) Lewis 320 Deed Article of 3/75 317-1649 Lower Agreement Warranty 4/82 418-49 Deed Unit 4 a) Victor 439 Warranty 5/14/79 375-883 Platt b) Noal D. Part of Deed Article of 4/84 448-1400 Bishop 440 Part of Agreement Article of 9/84 455-61 440 Agreement Lewis 442 442 Article of Agreement Warranty 3/21/84 4/2/85 447-1130 465-134 McLain Deed Shelby Jack Unit 5 a) W.D. Cook 503A Article of Agreement. 6/15/78 361-1715 b) c) Robert LeGrand Wayne 505 506 Warranty Deed Article of 2/80 4/82 387-4 417-197 d) Jones Willis 514 Agreement Warranty 7/26/77 348-1103 e) Casperson Amos 517 Deed Article of 12/77 355-169 Dalley Agreement Warranty 4/81 404-206 f) Charles 518 Deed Warranty 3/12/79 372-121 g) Cochran Charles 518A Deed Warranty 3/12/79 372-1211 h) Cochran Michael 519A Deed Article of 10/20/80 396-171 Harrison and Sandra Agreement Warranty 7/20/83 436-1792 i) Harrison Lawrence 520A Deed Article of 9/79 380-190 j) Warren Thomas 521 Agreement Warranty 3/79 372-112 Henderson Thomas 521A Deed Warranty 3/79 372-1-126 Henderson Deed k) 1) James Simpson James 522 523 Warranty Deed Warranty 9/12/77 9/12/77 350-987 350-987 m) Simpson James 524 Deed Warranty 9/12/77 350-987 n) Simpson Ralph 525 Deed Warranty 9/30/77 351-566 o) Fricks Ralph 526A Deed Warranty 9/30/77 351-566 p) Fricks Edwin 527 Deed Article of 4/77 345-6 Harris 528 Agreement(3) q) Ikoko 529 531 Warranty Deed(3) Warranty 7/85 9/29/77 470-686 351-454 r) Allan William 519 Deed Article of 1/84 444-1147 Bellamy Agreement s) James Hardie 533 Article of Agreement 5/75 320-823 Warranty 6/85 468-908 Deed Unit 6 a) Robert Rash 2 Article of Agreement 4/17/84 448-1432 b) c) Robert Rash Howard Part of Article of 3 Agreement Part of Article of 4/17/84 9/29/83 448-1434 440-434 Eastlack 3 Agreement Eastlack 4 5 Article of Agreement Warranty 4/5/84 11/15/82 448-575 426-1071 Decker f) Ritter 6 Deed Warranty 8/8/80 393-657 Decker g) Ritter 7 Deed Warranty 11/15/82 428-1071 Decker h) Edward 8 Deed Warranty 8/10/81 408-1385 Powell i) George 10 Deed Article of 7/31/81 408-625 Dixon Agreement Warranty 6/12/85 468-905 j) Pablo 22 Deed Article of 7/25/83 437-260 Marrero k) Wanda 23 Agreement Warranty 1/18/84 461-1106 Cook 1) David 34 Deed Article of 11/5/80 396-1413 Wilson m) Marsha and 35A Agreement Article of 7/8/81 407-643 Preston Coltrane n) Marsha and 35B Agreement Article of 7/8/81 407-64 Preston Coltrane o) Wallace 36 Agreement Article of 12/29/80 398-1693 O'Brien p) Donald 39 Agreement Article of 2/22/84 446-841 Blount Agreement Howard Ritter q) Elizabeth 9,11-13 Warranty 8/31/84 455-140 Pickering 15-21 Deed 24-33 35-C 37,38 40,41 514A 9/5/85 455-415 Unit 7 Part of 526, parcel B and parcel A, section 27: parcel A, section 28. a) Geroge D. 1-8 Warranty 5/21/81 405-145 Dean Deed Unit 8 a) George D. 1-16 Warranty 5/21/81 405-145 Dean Deed In some of the instances reported above, the Respondent had conveyed title because of a previous agreement for deed executed by her husband before May 25, 1977, the first date of their joint ownership. Beyond that date Respondent was necessarily involved in the sales due to her joint tenancy in the property. The title to property which was sold pursuant to an agreement for deed or article of agreement would only be conveyed upon the payment of the full purchase price. In the event that that price was not fully paid, the Respondent retained title to the property. Following the death of D. D. Jeffords, Respondent on her own accord developed Unit 6 of Ocklawaha Hills. This occurred on or about July 17, 1980, and involved 43 lots which the Respondent subdivided within Unit 6. It can be seen in the discussion above that the Respondent was directly involved in the sale of all of those lots within Unit 6. At present the Respondent does not own any of the lots within Unit 6 or other units within Ocklawaha Hills. Unit 6 is immediately contiguous to Units 3, 4, 6 and 8 of the overall contiguous Units 1-8 within Ocklawaha Hills. Before his death, D. D. Jeffords had conveyed two and a half acres within Ocklawaha Hills to his stepson, George Daryl Dean, the natural son of the Respondent. This occurred in 1975. Other property was eventually conveyed to Dean, namely Units 7 and 8. This conveyance was made by the Respondent through the Petitioner following her husband's death. As stated before, that date of conveyance was May 21, 1981, through a warranty deed. No purchase price was paid by the son to the Respondent. Although the Respondent took back a mortgage in the amount of $43,208.91, the appraised value of the property being conveyed, this mortgage was not as a security for any money loaned from the Respondent to her son. This rather unusual arrangement was an effort to prohibit the natural father of the son from inheriting the property in Units 7 and 8. Dean quitclaimed his interest to the Respondent in 1982 in an effort to gain a loan from a lending institution. The arrangement was never consummated and the Respondent reconveyed the property to her son on February 25, 1984, via a quitclaim deed. Prior to Units 7 and 8 being conveyed from Respondent to her son, a survey was done and a plat made of Units 7 and 8 in which the lot lines were established. In this situation the son indicated to the surveyor who was at the property that he wanted to establish similar sized lots to those other units within Ocklawaha Hills. Dean asked his mother if she thought this was an acceptable technique, and she indicated that she believed that it was. The payment for the surveying related to the plats for Units 7 and 8 was made by the Respondent and reimbursed by her son. Although the son now offers lots within Units 7 and 8 of Ocklawaha Hills for sale, none of those lots have been sold. Unit 7 contains eight lots and Unit 8 contains sixteen lots. In paying for the surveying for Units 7 and 8 at a time when she owned the property and in conveying the property to her son, Respondent participated in the offer or disposition of property within Units 7 and 8 and has acted in furtherance of the efforts of her son to offer that property to third parties. Respondent in her testimony tried to establish that the Petitioner in the person of one of its employees who was a bureau chief within the Land Sales Division in 1978, namely Kenneth L. McDowell, had told her that it was acceptable to develop Unit 6 into any number of parcels less than fifty. In view of these representations, according to the Respondent, the development of Unit 6 into 43 lots was exempt from the requirement of Chapter 498, Florida Statutes, or its precursor, Chapter 478, Florida Statutes. Considering the remarks of McDowell in the course of the final hearing, together with the other facts of this case, the claim of any statement on the part of McDowell or other officials within the petitioning agency which allowed the Respondent to develop any number of lots less than fifty in Unit 6 of Ockalawaha Hills after the development of Units 1-5 is rejected and Respondent's belief in the entitlement to develop less than fifty additional lots without obtaining registration or obtaining a statutory exemption is rejected. This finding is made because any initial development of less than fifty lots is outside the jurisdiction to require registration. On the other hand, the development of additional lots beyond the initial 143 lots first developed and activities outside the scope of the settlement agreement of March 1979, be it one in number or 43 in number or fifty in number, is a continuation of a subdivider's offer and disposition and subjects the Respondent to the requirements for registration or makes it incumbent upon the Respondent to obtain an exemption from registration. To date, neither the Respondent nor anyone else associated with Ocklawaha Hills has registered any of the Units or been granted an exemption. Testimony was given by persons who purchased lots within Ocklawaha Hills from the Respondent, on the subject of road conditions within the subdivision. Sandra Harrison, who made a purchase of property in Ocklawaha Hills in 1980, indicated that in the course of a telephone conversation between Harrison's husband and the Respondent, Mr. Harrison inguired about the circumstances of the roads in the subdivision, wherein, Respondent indicated that the roads were to be county roads. This statement about the roads was an inducement to the Harrisons to purchase property in Ocklawaha Hills. No indication was given to the Harrisons by the Respondent as to the date the county could take over the roads. The county has yet to assume responsibility for road maintenance in the subdivision. After the Harrisons moved onto the property in Ocklawaha Hills, Respondent indicated that she was responsible for maintenance of the roads. Thomas Gordon Henderson purchased property from the Respondent in Ocklawaha Hills in 1979. He inquired about the status of the roads at that time and was told by the Respondent that the roads would be brought up to county standards and maintained by the county beyond that time. The fact of not having roads developed to county standards and maintained by the county would not dissuade Henderson from purchasing the property. Robert W. LeGrand bought property from the Respondent in Ocklawaha Hills in 1980. He inquired of the Respondent before purchasing the property on the subject of the roads and was told that some person named Buckles took care of those roads. Respondent told him that the roads would be graded the following week and that the county was supposed to take them over and keep them from that point forward. LeGrand would have purchased the property regardless of whether the county maintained the roads or not. Marsha Coltrane and her husband purchased property in Ocklawaha Hills from the Respondent in 1981. When the purchase was made, Respondent told the Coltranes that the roads, were going to be widened to a two-car width and that ditches were going to be provided for drainage and that the roads were going to be maintained by the county. Mrs. Coltrane indicates that she doesn't think that she would have purchased the property if she had not been told by the Respondent that the roads would be maintained by the county. Although the Articles of Agreement between the Coltranes and the Respondent which forms the basis of the purchase of the property in Ocklawaha Hills referenced a grant of easement found in Official Record Book 393, page 16, the- terms of this easement were not discussed when the property was bought. The mere mention of this easement did not alert the Coltranes to the fact that the Respondent intended to forgo responsibility to maintain the roads in Ocklawaha Hills. The easement was not attached to the Articles of Agreement as stated in the agreement. Had the Coltranes been aware of the terms of the grant of easement dating from August 1, 1980, a date approximately eleven months before the Coltranes' purchase, they would have seen that there was a disclaimer as to road maintenance on the part of the Respondent. Mrs. Coltrane subsequently learned of the existence of the disclaimer after purchasing the property. Ritter Decker purchased property in Ocklawaha Hills from Respondent in 1980 but has no recollection of any representations about road maintenance. An overall plat of every unit within Ocklawaha. Hills was prepared in 1982 at the behest of the Respondent. Respondent did not provide a public offering statement to any of the purchasers when offering or disposing of her interests in the Ocklawaha property.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That a final order be entered which imposes a civil penalty in the amount of 55,000.00 for the violation established through Count (1) and $5,000.00 for the violation established through Count (2). No recommendation is made as to the disposition of the violation under Count (3) in that the terms of Section 498.051, Florida Statutes, do not lend themselves to addressing the particular facts of this case. DONE AND ORDERED this 27th day of January, 1986, at Tallahassee, Florida. CHARLES C. ADAMS, 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 27th day of January, 1986. COPIES FURNISHED: Thornton Williams, Esquire Department of Business Regulation 725 South Bronough Street. Tallahassee, Florida 32301 Timothy Keyser, Esquire P. O. Box 92 Interlachen, Florida 32048 James Kearney, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 APPENDIX The proposed findings of fact of the parties have been substantially adopted, with the following exceptions: At paragraph 16 of the proposed facts of the Petitioner reference to 123 lots is rejected in view of contrary findings of fact in the recommended order. Paragraph 25 of the Petitioner's proposed findings of fact is rejected as being irrelevant. The first sentence of paragraph 4 to the Respondent's proposed findings of fact is rejected as not being necessary to case resolution, as are the latter two sentences of paragraph 5. Sentence 2 to paragraph 7 of the Respondent's proposed findings of fact is rejected as being contrary to the facts found in the recommended order. The balance of the paragraph beyond that sentence is rejected as being unnecessary to the case resolution. Sentence 2 to paragraph 8 of the proposed findings of fact of the Respondent is rejected as not being necessary to the case resolution, as is the last sentence of that paragraph. The third sentence in the proposed facts found at paragraph 9 of the Respondent is rejected as being contrary to the facts in the recommended order. The final sentence within paragraph 9 of the proposed facts of the Respondent is rejected as unnecessary to case resolution. Sentence 3 at paragraph 11 within proposed findings of fact by the Respondent is rejected as being contrary to facts found in the recommended order. The balance of the sentences found in proposed paragraph 11 are rejected as being unnecessary, other than the idea of constructive notice of the grant of easement which is rejected as being contrary to facts found. The last sentence of paragraph 12 of the proposed findings of facts by the Respondent is rejected as not being necessary for case resolution. Sentence 3 of paragraph 13 of the Respondent's proposed findings of fact up to the word "but" is rejected as not being necessary. The balance of that sentence is rejected as being contrary to facts found in the recommended order as is the last sentence within paragraph 13. Sentence 1 to paragraph 14 of the proposed findings of fact of the Respondent is rejected to the extent that it says that the Coltranes formented [Sic] an investigation. The balance of the paragraph is rejected as not being necessary, with the exception of the idea expressed that an overall plat of the eight units within Ocklawaha Hills was prepared in December, 1982. ================================================================ AGENCY FINAL ORDER ================================================================ STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES 725 SOUTH BRONOUGH STREET - JOHNS BUILDING TALLAHASSEE, FLORIDA 32301-192 DEPARTMENT OF BUSINESS REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES, Petitioner, CASE NO. 85-0659 DOCKET NO. 85017RSD CHRISTELL B. SHEEFIELD d/b/a OCKLAWAHA HILLS, Respondent. /
