Findings Of Fact Suncoast Highland Corp. (Suncoast), is the developer and registrant of Shadow Run Subdivision in Hillsborough County. Prior to 1970, Suncoast was known as Suncoast Peach Corporation. C. Thomas Petersen, Peter Lenhardt, and two other individuals formed Suncoast Peach Corporation in 1964. In 1974 Suncoast registered Unit 1 of Shadow Run with the Division of Land Sales (Division). At that time Suncoast's principals were C. Thomas Petersen, President and Director, and Peter M. Lenhardt, Vice President, Director, and in charge of marketing. As a charter stockholder and owner of 166,000 shares (26-2/3 percent of ownership), Lenhardt filed an affidavit stating he devoted 100 percent of his time five days per week to Suncoast's business affairs. Lenhardt was (and presumably still is) a registered real estate broker and was in charge of sales in Shadow Run. In 1977 Suncoast registered Unit 2 (consolidated with Unit 1) with the Division. At this time Petersen and Lenhardt alleged each owned 13.5 percent of Suncoast and Lenhardt again filed an affidavit stating he devoted 100 percent of his time to Suncoast's business affairs and was in charge of sales in Shadow Run. In the Annual Report filed November 13, 1978, Lenhardt executed an affidavit representing himself to be Suncoast's principal officer in connection with this filing. This report included financial and inventory data for Shadow Run, Units 1 and 2, as well as 16 other registered subdivisions. At this time Petitioner and Lenhardt represented they each owned 38 percent of Suncoast (Exhibit 1E). On January 30, 1979, Lenhardt filed, under oath, renewal applications for Shadow Run, Units 1 and 2. This application (Exhibit 1F) showed out of 277 lots registered in Unit 1, 227 had been deeded and 50 remained to be sold. In Unit 2 out of 89 registered lots, 76 had been deeded and only 13 remained unsold. In August 1978 the Division began receiving complaints from Shadow Run homeowners concerning assessments, placing of utilities, and lack of promised recreational facilities. After meeting with the homeowners association and representatives of Suncoast, the Division issued a Notice to Show Cause against Suncoast. For several months thereafter representatives of the Division, Suncoast, and the homeowners association attempted to resolve the complaints. On April 19, 1979, C. Thomas Petersen, President, and Thomas Coates, Secretary, of Suncoast executed a stipulation in which, inter alia, further sales would remain suspended pending submission of all promotional and advertising materials to the Division, Suncoast would enter into an agreement concerning recreational facilities to be furnished by Suncoast, and Suncoast would pay a $7,500 civil penalty to the Division (Exhibit 1G). On December 10, 1979, Suncoast executed an agreement (Exhibit 1H) whereby it agreed, among other things, to install a concrete boat ramp no longer than 20 feet extending not more than two feet into Lake Grady on Lot 14, Block 1, Shadow Run, Unit 1, and convey legal title of the boat ramp area to the association; and, in conjunction with the boat ramp, provide a parking area 96 feet wide abutting on Shadow Run Boulevard at Lot 14, Unit 1, Shadow Run Subdivision, running from Shadow Run Boulevard to the water. This agreement was not recorded. No evidence was submitted when, or if, Lenhardt disposed of his ownership interest in Suncoast and Timber Oaks and terminated his management role in those companies. Lenhardt was listed as Secretary/Treasurer of Suncoast in the annual corporate report for 1980. His name on the 1981 annual corporate report for Suncoast was lined out and Linda Burr's name was added as Secretary. Lenhardt's name does not appear on subsequent reports. Timber Oaks, Inc., was incorporated February 11, 1980, with C. Thomas Petersen as President, Peter M. Lenhardt as Vice President, and Linda Burr as Secretary (Exhibit 3). On the 1981 annual corporate report Lenhardt's name was lined out and Linda Burr's name was added as Secretary. Coppice-Boden, Inc., was incorporated August 28, 1980, with Peter Lenhardt as President, Helen K. Lenhardt as Vice President, and Delores Hamm as Secretary. Hamm's name was deleted from the 1982 annual corporate report and both Lenhardts continued to be listed through the 1984 annual corporate report. No evidence was submitted showing transfer of the property which included Lot 14, Unit 1, Shadow Run Subdivision 1, from Suncoast to Timber Oaks, Inc.; however, by warranty deed dated October 29, 1982, Timber Oaks, Inc., conveyed property which specifically included Lot 14, Unit 1, Shadow Run Subdivision 1, to Coppice-Boden Corp., for a stated consideration of $340,000 (Exhibit 5). On November 11, 1982, Coppice-Boden, Inc., mortgaged the property which included Lot 14, Block 1, Unit 1, Shadow Run Subdivision, to G. G. Moore to secure a note in the amount of $72,031.63. The Special Warranty Deed dated February 29, 1980 (Exhibit 8) whereby Community Banks of Pinellas conveyed certain property to Timber Oaks, Inc., excluded Lots 1 through 22, inclusive, of Block 1, of Shadow Run, Unit 1.
The Issue The issue is whether Respondent, Citra-Life, Inc., LLC, is indebted to Petitioner for the purchase of citrus fruit; and, if so, in what amount.
Findings Of Fact The final hearing was convened, as duly noticed, on November 30, 2017, at 9:30 a.m. Neither party appeared at the final hearing. No evidence was presented by either party. Prior to the final hearing, neither party filed any correspondence or motions with DOAH requesting a continuance of, or objecting to, the hearing date.
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 Petitioner’s complaint against Citra-Life. DONE AND ENTERED this 1st day of December, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 1st day of December, 2017.
The Issue Whether or not Petitioner (complainant) is entitled to recover $1,340.50 or any part thereof against Respondent dealer and Respondent surety company.
Findings Of Fact Petitioner is a grower of watermelons and qualifies as a "producer" under Section 604.15(5) F.S. Respondent Steve Helms Fruit Co., Inc. is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1) F.S. Respondent Ohio Casualty Insurance Co. is listed as surety for Steve Helms Fruit Co., Inc. The amount and period of the bond have not been established. The time material to the amended complaint is June, 1994. Two or three weeks before Petitioner's melons were ready for harvest, Steve Helms personally came to Petitioner's home and requested to ship Petitioner's melons for ultimate retail sale. Petitioner requested to be paid "up front." Mr. Helms would not agree to pay all the money "up front" but agreed to pay some. He also agreed to pay within 14 days of the first shipment. Petitioner had had a bad experience two years previously, so he got Mr. Helms to promise to "clean up" his field. This expression is subject to some interpretation, and although Petitioner initially stated that the agreement was for Respondent broker-shipper to buy all his melons regardless of condition, Petitioner later modified his statement to say that Mr. Helms only promised not to take the best melons and leave the rest. Harvesting began May 15, 1994. Until June 10, 1994, Petitioner's usual contact with Respondent broker- shipper was Frank Favuzza, who oversaw all weighing and loading and assessed the Petitioner's melons on behalf of Respondent broker-shipper. On June 10, 1994, Mr. Helms was again personally in the field. Petitioner told Mr. Helms that he had to get the remainder of the melons off the field by Sunday, otherwise the heat would ruin them. Mr. Helms said he would wait until Monday. Petitioner believes that if the melons had been harvested by Sunday, June 12, 1994, three truckloads could have been harvested. On Monday, less than a full truckload was in good enough condition to be loaded onto a truck. A lot of melons were going bad and were left in the field to rot. On Tuesday, June 14, 1994, Petitioner's melons were weighed at Romeo, Florida and the poundage established at 29,330 pounds. Frank Favuzza estimated to Petitioner that his melons would only bring $.04/lb. From this conversation, related by Petitioner, it may be clearly inferred that Petitioner knew he would not be paid until after Respondent broker-shipper received payment from the ultimate retailer at the other end of the transaction. Petitioner's amended complaint alleged the amounts due as follows: "On June 1, 1994, #92111, 700 lbs. at $.07 equals $49.00, not $490.00; June 3, 1994, #92117, 900 lbs. at $.07 equals $63.00, not $630.00; and June 3, 1994, #92120, 790 lbs. at $.07 equals $55.30, not $553.00. Therefore Item (12) Complaint Total is amended to $1,340.00." The amendments did not alter the original claim for 6-14-94, invoice 92157 for 29,330 lbs. of melons at $.04 for $1,173.20. There was no claim for the melons that rotted in Petitioner's field. Weight tickets and Respondent's corresponding broker-shipper's bills of lading were admitted in evidence. These showed the following amounts were received by Respondent broker-shipper: 6/1/94 INVOICE 92111 46,020 net weight melons 6/3/94 INVOICE 92117 45,580 net weight melons 6/3/94 INVOICE 92120 44,720 net weight melons 6/14/94 INVOICE 92157 29,330 net weight melons Petitioner testified, without refutation, that he was present at each weighing and that he had agreed to take $.07 per pound on all loads except for the June 14, 1994 load for which he was claiming $.04 per pound. The bills of lading support Petitioner's testimony as to the price per pound. The bills of lading also clearly show that the price per pound was "to farm minus labor." This notation means that the net amount to be paid Petitioner by Respondent was subject to a prior deduction for labor, but it cannot reasonably be inferred to include a deduction for shipping. Petitioner's last load of 29,330 lbs. of melons weighed on June 14, 1994 was less than a full truckload, so Respondent added melons from another farm to that truck to make up a full load. Respondent broker-shipper did not pay Petitioner for 700 pounds of the June 1, 1994, invoice 92111 truckload; for 900 pounds of the first June 3, 1994 invoice 92117 truckload; for 790 pounds of the second June 3, 1994 invoice 92120 truckload; or for any (29,330 pounds) of the June 14, 1994 invoice 92157 truckload, upon grounds that those melons were not saleable at their destination. Petitioner put in evidence Exhibit P-3 which is an accounting Respondent had sent him. It shows that Respondent broker-shipper had deducted $690.30 for labor on invoice 92111 and claimed 700 pounds could not be sold; had deducted $683.70 for labor on invoice 92117 and claimed 900 pounds could not be sold; had deducted $670.80 for labor on invoice 92120 and claimed 790 pounds could not be sold; and had paid Petitioner nothing on a June 14, 1994 truckload, invoice 92159. Invoice 92157, which corresponds to Petitioner's June 14, 1994 partial truckload of 29,330 pounds of melons, is not listed or otherwise explained in the exhibit. The exhibit is conclusionary and inexplicably is dated 1993. There is no back-up evidence to support Respondent's making these deductions. No inspection certificate or labor charges are in evidence. Petitioner's initial complaint, which he put in evidence as P-1, constitutes an admission by him. In the complaint, Petitioner contended (1) that he was selling "direct" to Respondent broker-shipper; (2) that he was selling "f.o.b."; and (3) that he was selling "Fob shipping point excectance (sic) after final inspection." Petitioner also stated therein that he was given an inspection sheet showing 46,310 lbs. of watermelons had failed inspection and he did not feel the melons that failed inspection were his melons because Frank Favuzza approved of all melons loaded from Petitioner's field and the inspection sheet did not say that the bad melons were Petitioner's melons. Somewhat contrariwise, Petitioner testified at formal hearing that he had asked Respondent broker-shipper for a government inspection certificate showing that his melons were bad and never got it. From the credible evidence as a whole, it is inferred that Petitioner sold his watermelons on the June 14, 1994 truckload at $.04 per pound contingent upon the melons arriving at their ultimate destination in saleable condition per a federal inspection. It is further inferred that the prior three loads at issue also were sold contingent upon their arriving in saleable condition. The evidence as a whole also supports a finding that Petitioner's melons left the weigh station in a condition capable of being sold for the respective prices agreed upon between Petitioner and Respondent broker-shipper. Any deterioration of melons between June 10, 1994 when Petitioner requested that the broker-shipper take the last load and June 14, 1994 when the last load actually was weighed and shipped is attributable to Respondent broker-shipper, but that fact is not significant since the lesser rate of $.04/lb. was agreed upon prior to shipping and after Respondent broker-shipper had seen and approved the loaded melons. Petitioner's foregoing evidence of delivering saleable quality melons to Respondent broker-shipper is unrefuted. The presumption is thereby created that but for some failure of Respondent broker-shipper, the melons would have arrived at their ultimate destination in saleable condition. There is no evidence of record to support Respondent's deductions for "labor," or for melons which allegedly could not be sold upon delivery at the ultimate destination. Petitioner moved ore tenus to further amend his complaint to include a prayer for reimbursement for the cost of the melons which rotted in his field and became unsaleable between June 10 and June 14, 1994 due to Respondent broker-shipper's delay in loading and to assert a claim for interest on the $1,340.50 claim. This motion was denied as too late.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture enter a final order awarding Petitioner $1,340.50, and binding Respondents to pay the full amount of $1,340.50, which in Ohio Casualty Insurance Co.'s case shall be only to the extent of its bond. RECOMMENDED this 2nd day of June, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 2nd day of June, 1995. APPENDIX TO RECOMMENDED ORDER 94-6189A The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-2 Accepted. Rejected as unnecessary Rejected as subordinate and mere argumentation. 5-6 Rejected as mere argumentation. Rejected as these were not the dates testified. Rejected as mere argumentation. Respondent Steve Helms Fruit Co., Inc.'s PFOF: 1 Accepted. 2-4 Rejected as not proven. Accepted as to the June 10-14, 1994 load. Rejected as not proven. Not proven in whole. Covered to the extent proven. While one inference might be that a different invoice number was assigned to the combined load, that is not the only reasonable inference based on the evidence submitted. Likewise, although Petitioner apparently got some inspection certificate, that certificate is not in evidence. There is no record evidence as to what it covered. It is not reasonable to infer or guess that it covered four loads on four trucks on three dates or that there is any way to calculate from it that the only bad melons were Petitioner's melons and not those mixed in from another farm on June 14, 1994. See FOF 19-20. 8-15 Rejected as not proven. Respondent Ohio Casualty Insurance Co.'s PFOF: None filed COPIES FURNISHED: Frank Favuzza, President Steve Helms Fruit Co., Inc. Post Office Box 1682 Auburndale, Florida 33823 Tom Morton Ohio Casualty Insurance Co. Post Office Box 94-5010 Maitland, Florida 32794-5010 L. C. Stevenson 333 NW 46th Avenue Ocala, Florida 34482 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol PL-10 Tallahassee, Florida 32399-0810 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL 10 Tallahassee, Florida 32399
The Issue Whether Respondents committed the offenses set forth in the Administrative Complaint and, if they did, the penalties, if any, which should be imposed.
Findings Of Fact On May 15, 1989, Petitioner filed an Order to Cease and Desist, Administrative Charges and Complaint with Notice of Rights against several parties including the following Respondents to the instant proceeding: Habersheir Securities, Inc. (Habersheir); Raymond Hayden (Hayden); Sharieff Mustakeem (Mustakeem); and Frank J. Hurt, III (Hurt). By Order Imposing Sanctions entered November 30, 1989, a default pursuant to Rule 1.380(b)(2)(C), Florida Rules of Civil Procedure, was entered against Habersheir, Hayden, and Mustakeem. No appearance was made by Habersheir, Hayden, or Mustakeem at the formal hearing, although Notice of Hearing was served upon them. Habersheir is a corporation whose main office in Atlanta, Georgia, has been registered with Petitioner as a broker/dealer since June 22, 1987. The Florida branch office of Haersheir was located at 100 West Cypress Creek Road, Suite 810, Fort Lauderdale, Florida 33309. The branch office was registered with Petitioner on September 29, 1988. At all times pertinent hereto, Mustakeem was the president of Habersheir and the majority owner of its stock, while Hayden was a vice- president of Habersheir. At the time of the final hearing, neither Mustakeem nor Hayden was registered with Petitioner. At all times pertinent hereto, Hurt was qualified for registration with Petitioner as a principal. Hurt's registration with Petitioner had not, prior to the filing of this matter, been disciplined. The application submitted by Habersheir to Petitioner on September 7, 1988, listed Hurt as the "Designated Manager in Charge Registered as Principal in Florida". Form BD is a form required by Petitioner in the application process. On Schedule E of the Form BD filed by Habersheir on November 14, 1988, Hurt is listed as the "Supervisor" of the Florida Branch. Hurt's name and his registration with Petitioner as a principal were used in connection with the registration of the Florida Habersheir branch to gain a favorable review of the application by Petitioner. Such use was without compensation to Hurt, but was with his knowledge and permission. Hurt was a salesman who had been employed by Habersheir for a short period of time when the application for the Florida branch office was filed. He was not an officer of Habersheir and had no managerial authority. At no time did Hurt intend to serve the Florida branch office of Habersheir in any capacity and at no time did he have any authority to supervise or otherwise manage that office. Representatives of Habersheir transacted business in Florida between September 7, 1988 and September 28, 1988, prior to Habersheir's branch office being registered in Florida with Petitioner on September 29, 1988. Associated persons working for Habersheir sold securities in or from the branch office in Fort Lauderdale, Florida prior to the associated persons being registered with the Petitioner. Habersheir's branch office in Fort Lauderdale, Florida, failed to maintain records and make available for Petitioner's inspection its cash receipt and disbursement blotter, securities received and delivery blotter, order tickets, and customer confirmations on all transactions as required by Section 517.121, Florida Statutes, and by Rule 3E-600.014(4), Florida Administrative Code. Habersheir also failed to maintain copies of its associated persons files as required by Rule 3E- 600.0014 (5)(a), Florida Administrative Code. At all times pertinent to this proceeding, Habersheir was a member of the National Association of Securities Dealers (NASD). Between November 7, 1988, and November 30, 1988, Habersheir's authority to transact business was suspended by NASD. Habersheir failed to notify its Fort Lauderdale, Florida, branch office of its suspension by NASD. Consequently, business was transacted by that branch office while Haersheir's authority to transact business was suspended by NASD.
Recommendation Based on the foregoing findings of facts and conclusions of law, it is RECOMMENDED that the State of Florida, Department of Banking and Finance, Division of Securities, enter a final order which: Revokes all registrations presently held by Habersheir Securities, Inc., and which assesses an administrative fine against Habersheir Securities, Inc. in the amount of $10,000.00 for its violations of Sections 517.12(5), and 517.121(1), Florida Statutes; and Which dismisses the administrative complaint against Sharieff Mustakeem, Raymond Hayden, and Frank J. Hurt, III. DONE AND ENTERED this 27th day of February, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 22nd day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-3886 The following rulings are made on the findings of fact submitted by Petitioner: The proposed findings of fact In paragraphs 1-10 are adopted in material part by the Recommended Order. The proposed findings of fact In paragraph 11 are adopted in part by paragraph 1 of the Recommended Order, and are rejected in part as being unnecessary to the findings made. COPIES FURNISHED: Randall L. Rubin, Esquire Assistant General Counsel Office of Comptroller 401 N.W. 2nd Avenue Suite N-708 Miami, Florida 33128 Oliver Lee, Esquire Troutman, Sanders, Lockerman & Ashmore Candler Building, Suite 1400 127 Peachtree Street, N.E. Atlanta, Georgia 30303-1810 Frank J. Hurt, III 6666 Powers Ferry Road Suite 202 Atlanta, Georgia 30339 Preston Spears 91 Farmington Drive Woodstock, Georgia 30188 Rahim Davoudpour 1972 Benthill Drive Marietta, Georgia 33062 Honorable Gerald Lewis Comptroller, State of Florida Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Department of Banking and Finance The Capitol Plaza Level, Rm. 1302 Tallahassee, Florida 32399-0350 =================================================================
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.
The Issue The issue is whether Respondent, Greenblades of Central Florida, Inc., and its surety, Western Surety Company, are liable for funds due to Petitioner from the sale of agricultural products.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner operates a nursery supply company that produces trees, plants, and other landscaping supplies at a location in Bunnell, Florida. Respondent is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. At the time of the transactions in question, Respondent was a licensed dealer in agricultural products supported by a surety bond provided by Western Surety Company. This matter arose over a Producer Complaint filed by Petitioner on June 24, 2005, in which it alleged that Respondent owed $20,512.97, based upon five invoices for nursery goods delivered to various job sites where Respondent was providing landscaping services. The five invoices set forth in the original Producer Complaint are as follows: Date of Sale Invoice # Amount Dec. 28, 2004 64679 $2,884.72 Jan. 11, 2005 64828 3,878.75 Jan. 11, 2005 64829 1,926.00 Feb. 1, 2005 65229 2,086.50 Feb. 3, 2005 65127 9,737.00 Petitioner later amended its Complaint to withdraw its claims under Invoice Nos. 65229 and 65127, as untimely filed, resulting in an amended amount due of $8,689.47. Respondent filed a Response to the Producer Complaint on August 15, 2005, admitting the amounts due under Invoice Nos. 64679 and 64828, totaling $6,763.47, and denying the amount claimed in Invoice No. 64829, $1,926.00, as never having been filled, resulting in Respondent's using another vendor to fill the order. Respondent admitted the amounts due under Invoice Nos. 64679 and 64828; therefore, no further discussion is necessary for those items, except to note that Delivery Receipt No. 17751, relating to Invoice No. 64828 contains the note "Reject 1 Live Oak." Therefore, the amount of Invoice No. 64828 must be reduced by $214.00 ($200 for the tree and 7 percent Florida Sales Tax). With respect to Invoice No. 64829, however, Petitioner produced at hearing only an unsigned invoice without either a sales order or a receipt for delivery of goods, as was its custom concerning deliveries of nursery goods. Accordingly, Petitioner provided no proof that the order under Invoice No. 64829 was actually delivered to Respondent. Respondent and its surety, Western Surety Company, currently owe Petitioner $2,884.72 under Invoice No. 64679, and $3,664.75 under Invoice No. 64828, for a total amount owed of $6,549.47.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Agriculture and Consumer Services enter a Final Order requiring Respondent, Greenblades of Central Florida, Inc., or its surety, Respondent, Western Surety Company, to pay Petitioner $6,549.47 for unpaid invoices. DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 25th day of January, 2006. COPIES FURNISHED: Christopher E. Green, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Division of Marketing 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Joseph Robbins, Jr. Greenblades of Central Florida, Inc. 11025 Southeast Highway 42 Summerfield, Florida 34491 Tom Snyder Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077 Donald M. DuMond Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Tom Robinson Skinner Nurseries, Inc. 13000 State Road 11 Bunnell, Florida 32110 Honorable Charles H. Bronson Department of Agriculture and Consumer Services Commissioner of Agriculture The Capitol, 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
Findings Of Fact The Respondent is a licensee holding a 4COP SRX beverage license as a special restaurant licensee. The Respondent originally applied for a 4COP SRX license on January 26, 1977; however, at that time, he received licensure only as a 2COP. On the 2COP application, the Respondent stated that he did not have any partners. The Respondent reapplied for a 4COP SRX license two months later, at which time he was inspected and approved. This application, which was typed by the local beverage office from the original application filed by the Respondent, did not reflect that the Respondent had any partners in this business. The Respondent signed this application, which was brought to the Manhattan Restaurant by the officers conducting the inspection. Between the approval of his original license and application for the 4COP SRX license, the Respondent had entered into a limited partnership agreement with Tommie Battie. Subsequent to obtaining their license as a 4COP SRX, Battie and the Respondent had a disagreement over the financial arrangements in their limited partnership agreement. Battie reported to the local beverage office that he was a limited partner in this business. On the same afternoon that Battie advised the Beverage Department that he was a limited partner, agents of the local office inspected the Respondent's licensed premises at approximately 2:00 p.m. At the time the Respondent was inspected certain alleged deficiencies were reported. The Respondent allegedly did not have sufficient food on hand to serve 150 patrons a full-course meal and allegedly did not have business records on the premises regarding his sales of alcoholic beverages, and food and non- alcoholic beverages. Testimony was received regarding an inventory made of the premises at the time of the inspection. The Division was directed to copy the original inventory report and file this report as a late-filed exhibit. As of this date, this inventory has not been filed with the Hearing Officer, and it is hereby excluded from this record. The testimony revealed that the Respondent had on hand many pounds of chicken and pork chops, two loaves of bread, several large cans of green beans and potato salad, and two heads of lettuce. The Manhattan Restaurant's normal business day was from 5:00 p.m. to 1:00 a.m. The Respondent's sister assisted the Respondent in planning the meals. She made a list of needed grocery items when she arrived at approximately 4:00 to 4:30 p.m., and the Respondent picked up these items at a local grocery. The Respondent was bringing in chicken from a grocery shortly after the inspectors arrived at 2:00 p.m. The Respondent admitted that his business records were not on the premises and that the records which he had kept were deficient; but he stated that in the intervening year since he was inspected, he had improved his record- keeping system and now maintained adequate records on the premises. The Respondent admitted that he had not disclosed his limited partnership with Battie on his second application but had signed the application at the time of the inspection of the premises, not fully realizing that he was required to reveal Battie's interest in the business. Since the filing of this complaint, the Respondent has purchased Battie's interest in the business.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, and facts and mitigation, it is RECOMMENDED that the Division assess a civil penalty in the amount of $350.00 against the Respondent for violation of Rules 7A-3.14 and 7A-2.14, Florida Administrative Code, and Section 561.17, Florida Statutes. DONE and ENTERED this 6th day of February, 1979, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1979. COPIES FURNISHED: Mary J.M. Gallay, Esq. Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32304 Jack William Windt, Esq. 1939 Golf Street Sarasota, FL 33577
Findings Of Fact At all times here involved Theodore R. Johnson was a registered real estate salesman and managed the UFA office at DeLand, Florida. He has been a registered real estate salesman for more than 30 years. He was authorized to sign checks on the escrow account of UFA in DeLand. At all times here involved Roy Edwin Schaefer was a registered real estate salesman and an associate of Johnson at DeLand. At all times here involved Richard W. Goddard was a registered real estate broker and officer and Active Firm Member in UFA with offices in Orlando, Florida. He was the broker under whom Johnson and Schaefer worked. He supervises some 20 UFA branch offices in Florida north of Orlando. He visits the branch offices at frequent intervals (once or twice a week) and exercises general supervision over these offices headed by a salesman. At all times here involved United Farm Agency, Inc. was a corporate registered real estate broker and maintained a district office in Orlando, Florida. The practice of UFA, which was in existence in 1971 to allow salesmen who head branch offices to disburse funds from their escrow account, has been changed. Now the signature of the broker is also required before funds can be disbursed from the escrow account. On August 15, 1970 Schaefer obtained a listing agreement for UFA on property owned by Prentice L. and Vivian Glasgow in Pierson, Florida. This listing agreement provided, inter alia, that in the event there is a forfeiture of funds deposited, 1/3 of such forfeited funds would go to the seller and the balance paid to UFA as commission. By Deposit Receipt and Agreement for Sale dated July 9, 1971 (Exhibit 7) one Margaret C. Lord offered to buy the Glasgow property at the asking price and Glasgow accepted. Schaefer procured the buyer and the contract was drawn up in the UFA branch office in DeLand, apparently by Johnson and/or his secretary of some 30 years. During Schaefer's discussion with Mrs. Lord at her motel immediately prior to the drafting of the contract he observed some $4000 in cash she was carrying in her purse. At the time Lord signed the contract she put up $1500 by check and stated she would have an additional $6000 transferred to her account by her broker and would present the additional $6000 within two or three days. No one who participated in the preparation of the sales agreement doubted her intention and ability to produce the additional earnest money deposit. The contract and the $1500 deposit check was held by Johnson for several days and when the additional deposit promised by the buyer was not forthcoming Johnson deposited the $1500 in the UFA escrow account and forwarded a report of sale to UFA (Exhibit 14). By acknowledgment of sale letter dated July 20, 1971, UFA acknowledged Johnson's report of sale and a $7500 deposit. The contract provided buyer could take possession of the property July 17, 1971 and closing was set for October 11, 1971. Neither Johnson nor Schaefer were able to again contact Mrs. Lord. Shortly after the contract was executed the Glasgows were advised that only $1500 had been deposited. After Johnson had been unable to contact Mrs. Lord he advised Goddard that only $1500 had been deposited, and by memo dated October 18, 1971 (Exhibit 19) Goddard advised UFA's home office. The Glasgows were in the process of getting a divorce and Glasgow was anxious to consummate the sale. After checking several times with Johnson about the closing, Glasgow advised Johnson he needed money to move off the property (Glasgow's testimony) or that he needed money in connection with his divorce (Johnson's testimony). Early in the morning on August 25, 1971 Glasgow made an urgent request to Johnson for funds and Johnson wrote Glasgow a check for $500 on the escrow account because he, Johnson, did not have a personal check available at the time. The same morning Johnson obtained $500 from his wife and deposited this money in the escrow account. The escrow account was credited with $500 on August 25, 1971 and debited with $500 on August 31, 1971 when the check issued to Glasgow cleared. Johnson's testimony that he considered the $500 a personal loan to Glasgow was unrebutted and is supported by his deposit of a like sum in the escrow account as soon as the bank opened. Shortly after the contract was executed, but before the $1500 check was deposited, Schaefer, without Johnson's knowledge, delivered a copy of the contract to Glasgow. The contract provided, inter alia, that if either the seller or the buyer fails to perform his part of the agreement he will forthwith pay as liquidated damages to the other party a sum equal to 10 percent of the agreed price of sale. When Johnson's efforts to locate Mrs. Lord were unsuccessful and no response received to letters of August 28 and October 4, 1971, Johnson disbursed the balance of the funds in the escrow account on October 18, 1971. One check in the amount of $250 he paid to himself as reimbursement for his expenses in attempting to locate Mrs. Lord. The remaining $750 ($500 of the $1500 had already been given to Glasgow, but how the cash deposit of $500 made August 15 was withdrawn from the escrow account was not explained) was split between Johnson and UFA. After the transaction fell through Glasgow moved back on his property. By letter dated October 20, 1972 (Exhibit 8) Glasgow filed a complaint with the Florida Real Estate Commission in which he referred to the liquidated damages provision of the contract (10 percent of purchase price) and the $7500 down payment which he alleged UFA had in escrow and had not paid to him. The investigation followed which led to the complaint filed herein.
The Issue The primary issue in this hearing was the existence of a contract between M. Stembridge and Jack's Fruit Company under which monies were owed Stembridge.
Findings Of Fact Prior to August 5, 1974, Mrs. Barbara Stembridge, who was in the grove caretaking business, called Mr. Jack Goldtrap by telephone relative to the sale of citrus fruit on properties managed by her for her mother-in-law and herself. Their discussion regarding the sale of the fruit and the terms was incorporated with the contract, Exhibit 1, which Mr. Goldtrap sent to Mrs. Stembridge together with a check for $7500. Mrs. Stembridge executed the contract, accepted the check, and returned the executed contract to Mr. Goldtrap. This contract recites that Mr. Goldtrap had purchased " all fruit on the following groves at market price at time of picking less 50 cents plus picking cost". Thereafter the contract lists the groves subject to the contract: "Home Bloc, Poor Prospect and R. F. Stembridge grove." The testimony was uncontroverted that the fruit which is the subject of the instant controversy was located within the groves enumerated in the contract, however, Mrs. Barbara Stembridge stated that it had not been her intent to sell the fruit in controversy, but she was uncertain whether this was communicated to Mr. Goldtrap prior to the execution of the contract. Mr. Goldtrap testified that he felt he had purchased all the fruit on the groves as stated in the contract. The Hearing Officer finds that the contract, Exhibit 1, takes precedent over any prior verbal agreement between the parties to the contract and that Mr. Goldtrap purchased all fruit in the grove identified therein. Mrs. Barbara Stembridge and R. M. Stembridge testified that subsequent to the written contract with Mr. Goldtrap that R. M. Stembridge entered into an oral agreement to purchase the fruit in controversy from Mrs. Stembridge (the mother of R. M. Stembridge and mother-in-law of Mrs. Barbara Stembridge, who is the sister-in-law of R. M. Stembridge). R. M. Stembridge desired the fruit for sale in his roadside stand at his service station, and planned to pick the fruit in controversy himself on a piecemeal basis over several months. Pursuant to her mother-in-law's Instructions, Mrs. Barbara Stembridge contacted T. G. Mixon, a field superintendent with 31 years experience to estimate the value of the fruit in controversy. T. G. Mixon looked at the trees and crop in controversy late in 1974 and estimated in value to R. M. Stembridge as $3/box; however, he qualified his estimate stating that this was only a valid estimate of its value to R. M. Stembridge based on his particular intended use and that its market value was no where near that figure. R. M. Stembridge paid the agreed upon price of $900 to his mother-in-law for the fruit in controversy. Prior to picking the fruit he had purchased, Mr. Goldtrap visited the groves and was shown the groves, their boundaries, and the fruit in controversy by Mrs. Barbara Stembridge's foreman. This fruit was red grapefruit which is generally unsuitable for juice production. Such fruit cannot be economically picked for juice because there is no market for the unacceptable fruit. Mr. Goldtrap was advised by Mrs. Stembridge's foreman that Mr. Stembridge was interested in the fruit. Mrs. Barbara Stembridge testified that she thought that her foreman had told an unknown person that the red grapefruit had been promised to her brother-in-law. Mr. Goldtrap decided not to pick the red grapefruit, but to leave the fruit on the trees, and instructed his picking crew supervisors to check with R. M. Stembridge to determine which of the fruit be desired. In addition to the red grapefruit in controversy, R. M. Stembridge also had agreed to purchase white grapefruit from approximately 10 trees adjoining his service station, a fact unknown to Mr. Goldtrap or his supervisors. When the supervisors called on Mr. Stembridge to find out which trees should be spared, Stembridge thinking that they were referring to the white grapefruit trees near his station and that they had been shown the red grapefruit trees by his sister-in-law's foreman told them to begin their picking and when they got down to the station he would show them the trees to spare. Mrs. Barbara Stembridge's foreman did not instruct the picking supervisors and the picking crew picked the red grapefruit in controversy. When Mr. Stembridge became aware of the reds having been picked, he contacted Mr. Goldtrap. Mr. Stembridge was very irate and Mr. Goldtrap was very apologetic not fully realizing how the fruit had been picked when it had been his intent to spare the fruit. At this point, Stembridge demanded $3/box for the fruit, and Mr. Goldtrap stated that was a high price. Thereafter, in either this conversation or a subsequent one, Stembridge stated perhaps he knew a man who would buy them, however, when contacted this individual was not interested. When Goldtrap was advised of this, Goldtrap said he would send another truck and collect the red grapefruit. The issue presented in this controversy, therefore, becomes a question of whether there was a transaction between Mr. Goldtrap and Mr. R. M. Stembridge. It is clear from the contract, Exhibit 1, that Mr. Goldtrap owned the fruit in question at the time Mr. Stembridge "purchased" the fruit from his mother. Goldtrap intended to leave the fruit because of it low value and instructed his supervisors to contact Stembridge so that Stembridge could identify the trees in which be was interested. However, these trees were not identified by Stembridge because Stembridge thinking the supervisors were referring to the white grapefruit trees, did not indicate the trees he desired. Therefore, Goldtrap's intent to relinquish his right to the fruit was never effectively communicated to Mrs. Barbara Stembridge or to R. M. Stembridge. Mr. Stembridge's demand for $3/box for the grapefruit was in essence a demand for damages and not an offer for sale. Even if it were viewed as an offer (overlooking Stembridge's lack of ownership), there is no evidence that Goldtrap accepted the offer. His response was to advise Stembridge that he would send another truck to pick up the fruit. This action was consistent with his prior contract with Barbara Stembridge to purchase all the fruit in the groves and his legal obligation. See Section 601.64(3), Florida Statutes. The testimony was clear that Mr. Goldtrap had not paid out the moneys received from the sale of the red grapefruit because of the questions raised by R. M. Stembridge. However, Barbara Stembridge has filed no complaint in this matter, and based upon the foregoing findings that there is no transaction or contract between R. M. Stembridge and Goldtrap, R. M. Stembridge is not entitled to an accounting or to payment for the fruit in controversy.
The Issue The issues for determination in this case are whether Respondent is indebted to Petitioner for the purchase of agricultural products, and whether such indebtedness constitutes a breach of the conditions of the bond posted by the Surety for which payment should issue.
Findings Of Fact Petitioner, SARASOTA GROWERS INCORPORATED (SARASOTA GROWERS), is a producer of agricultural products, primarily nursery ornamental plants, in Sarasota County, Florida. W.R. Walden is president of SARASOTA GROWERS. Respondent, TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING (GULF BREEZE), is a licensed dealer in agricultural products, holding License Number 10091, issued by the Department of Agriculture and Consumer Services. At all material times, David Joy was the manager of GULF BREEZE. Co-Respondent and Surety, FRONTIER INSURANCE COMPANY OF NEW YORK (FRONTIER), posted Bond Number 5004806 in the amount of $9,999.00 in support of Respondent's license as a dealer in agricultural products. The inception date of the bond was April 30, 1996, and the expiration date of the bond was April 30, 1997. In early 1997, Respondent GULF BREEZE through its manager, David Joy, contacted SARASOTA GROWERS and ordered the delivery of certain agricultural products. By usual business practices, payment was demanded upon delivery. On February 10, 1997, SARASOTA GROWERS delivered agricultural products to GULF BREEZE. The invoiced value of the agricultural products delivered to GULF BREEZE was $2,255.00. On February 12, 1997, SARASOTA GROWERS delivered agricultural products valued at $302.50 to GULF BREEZE. On March 7, 1997, SARASOTA GROWERS delivered agricultural products valued at $18.00 to GULF BREEZE GULF BREEZE did not pay for the agricultural products at the time of delivery by SARASOTA GROWERS. At each of these deliveries, SARASOTA GROWERS was informed by an employee of GULF BREEZE that the manager David Joy, was not present, but that payment by check would be mailed. After the delivery of March 7, 1997, SARASOTA GROWERS ceased making deliveries to GULF BREEZE. After several demands for payment by SARASOTA GROWERS, GULF BREEZE remitted a partial payment of $1,000.00 for the agricultural products delivered by SARASOTA GROWERS. GULF BREEZE failed to properly make payment for agricultural products delivered by SARASOTA GROWERS and is indebted to SARASOTA GROWERS in the amount of $1,575.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered directing Respondent TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING, to pay Petitioner SARASOTA GROWERS INCORPORATED $1,575.50 for agricultural products sold to Respondent, and in the event Respondent fails to make such payment, within fifteen (15) days of that order, that the Surety be required to pay pursuant to the bond posted. DONE AND ENTERED this 14th day of November, 1997, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1997. COPIES FURNISHED: Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399 W. R. Walden, President Sarasota Growers, Incorporated 1001 Sinclair Drive Sarasota, Florida 34240 Toulia Xioutas, Incorporated Gulf Breeze Landscaping 901 MacEwen Drive Osprey, Florida 34229 Frontier Insurance Company of New York 195 Lake Louise Marie Road Rock Hill, New York 12775-8000
